       FIL.E
        IN CLt!RKS OFFICI! ~                             This.~9Pinion
                                                                    was filed for record
                                                         at 8:00/\lV) on j\1\~j .~l.'ZOI5
     llATE   MAY 0 '? 2015       l
IUPREM!! COURT, STATE~ WASIIIGfQII


                                                                  ~~(
·Ma~Q-·                                                     ~ onald A. Carpenter
                                                               Supreme Court Clerk



         IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  STATE OF WASHINGTON,                                   NO. 90068-0
                              Petitioner,
                     v.                                  ENBANC

  RYAN JAMES PEELER,
                              Respondent.
                                                                 MAY
                                                         Filed - -   0 7 2015
                                                                   -----



          GORDON McCLOUD, J.-The intrastate detainers act (IDA), chapter 9.98

 RCW, requires the State to bring a \Vashington State prisoner to trial for any untried

 charge within 120 days of the prisoner's request for a final disposition. RCW

 9.98.010. Ryan Peeler was serving a prison sentence on a Snohomish County charge

 at the Washington Corrections Center (WCC) when he requested a final disposition

  of an untried charge in Skagit County. By the time that the Skagit County prosecutor

  received Peeler's final disposition request, however, the Department of Corrections

  (DOC) had transported him to the King County jail to await trial on unrelated




                                            1
State v. Peeler (Ryan James), No. 90068-0


charges.   Peeler was not returned to WCC until well after the Skagit County

prosecutor received his request.

      The State failed to bring Peeler to trial in Skagit County within 120 days of

receiving his final disposition request. We affirm the Court of Appeals' decision

that even though Peeler was physically located in King County when the State

received his final disposition request, his request was valid and the State failed to

meet the 120-day deadline to bring him to trial in Skagit County. We affirm.

                                      FACTS

      The parties do not dispute the relevant procedural facts, which we summarize

chronologically below:

     Jan. 28, 2011                            Skagit County charges Peeler by
                                              information with second degree
                                              assault. At the time, Peeler is in
                                              Snohomish County Jail on an
                                              unrelated charge.
     Sept.12,2011                             Peeler is sentenced to a term of
                                              imprisonment on the Snohomish
                                              County charge.
     Sept. 20, 2011                           Peeler commences his prison term
                                              at the WCC in Shelton.
     Oct. 7, 2011                             While at the WCC, Peeler initiates
                                              his first request for speedy
                                              disposition of the untried Skagit
                                              County charge under chapter 9.98
                                              RCW.
     Oct.18,2011                              WCC transports Peeler to King
                                              County pursuant to a September 28,
                                              2011 transport order.


                                          2
State v. Peeler (Ryan James), No. 90068-0


    Oct. 24, 2011                           A WCC official signs a certificate
                                            of inmate status attesting that Peeler
                                            is a prisoner at that institution.
    Oct. 26, 2011                           The Skagit County prosecuting
                                            attorney and superior court receive
                                            Peeler's request and the certificate
                                            of inmate status.
     Oct. 27, 2011                          The Skagit County Superior Court
                                            orders the DOC to transport Peeler
                                            to Skagit County Jail "as soon as
                                            possible." Between October 27,
                                            2011, and November 17, 2011,
                                            DOC advises the Skagit County
                                            Prosecuting Attorney's Office by
                                            telephone that it cannot comply with
                                            the transport order because Peeler is
                                            in King County jail.
     Dec. 23, 2011                          Peeler pleaded guilty and 1s
                                            sentenced to a term of imprisonment
                                            on the King County case.
     Dec. 30, 2011                          Peeler is transported from King
                                            County jail back to the WCC.
     Jan.20,2012                            Peeler initiates his second request
                                            for speedy disposition of the untried
                                             Skagit County charge. A WCC
                                             official signs a second certificate of
                                             inmate status.
     Feb.2,2012                              The Skagit County Superior Court,
                                             issues a transport order for Peeler,
                                             and the deputy prosecuting attorney
                                             notes a hearing for February 16,
                                             2012.
     Feb. 14,2012                            DOC transports Peeler to Skagit
                                             County Jail.




                                        3
State v. Peeler (Ryan James), No. 90068-0


    Feb. 16, 2012                           The Skagit County Superior Court
                                            arraigns Peeler on the second degree
                                            assault charge and sets the initial
                                            trial date for April 9, 2012.
    Feb. 23,2012                            The 120-day deadline based on
                                            Peeler's first request for speedy
                                            disposition expires.
    Aug. 17, 2012                           Peeler moves to dismiss the Skagit
                                            County charge with prejudice for
                                            violation of the 120-day speedy
                                            disposition deadline under RCW
                                            9.98.010(1).
     Aug. 22, 2012                          The Skagit County Superior Court
                                            denies Peeler's motion.
     Aug. 27, 2012                          Trial commences over 10 months
                                            after the prosecutor and court
                                            receive Peeler's first speedy
                                            disposition request.

See State v. Peeler, noted at 179 Wn. App. 1038,2014 WL 720879, at *1.

      The Skagit County Superior Court denied Peeler's motion to dismiss,

explaining, "For RCW 9.98.010 to apply[,] the person must be imprisoned and

available for transport." Clerk's Papers (CP) at 86. That court correctly found that

Peeler was physically located in King County, not WCC, when the Skagit County

prosecutor received his first request for final disposition.     The superior court

therefore concluded that Peeler was not available for transport from WCC at that

time, that that was the time period that counted for purposes ofRCW 9.98.010, and,

hence, that the 120-day time limit did not begin. CP at 85-86.




                                         4
State v. Peeler (Ryan James), No. 90068-0


      Peeler was then convicted by jury of second degree assault with a special

verdict that the victim's injuries substantially exceeded the level of bodily harm

necessary to constitute "substantial bodily harm." CP at 112. The superior court

imposed an exceptional sentence of 100 months. CP at 272.

      The Court of Appeals reversed. Peeler, 2014 WL 720879, at* 1. It held that

Peeler's first final disposition request effectively triggered the 120-day period on

October 26, 2011, when the Skagit County prosecutor and superior court received it,

and that the State did not timely bring him to trial. Id. at *5. The Court of Appeals

remanded to the superior court with instructions to dismiss the Skagit County charge

with prejudice. !d.

      We granted the State's petition for review. State v. Peeler, 181 Wn.2d 1006,

332 P.3d 985 (2014).

                                     ANALYSIS

      I.     Standard of Review

      This case presents a question of statutory interpretation, which we review de

novo. Ass 'n of Wash. Wine Spirits & Wine Distrib. v. Wash. State Liquor Control

Ed., 182 Wn.2d 342,350,340 P.3d 849 (2015) (citing State v. Veliz, 176 Wn.2d 849,

853-54, 298 P.3d 75 (2013)). When interpreting a statute, our primary '"objective .

. . is to ascertain and carry out the legislature's intent."' Ralph v. Dep 't of Natural

Res., 182 Wn.2d 242, 248, 343 P.3d 342 (2014) (quoting Arborwood Idaho, LLC v.

                                           5
State v. Peeler (Ryan James), No. 90068-0


City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004)).              We determine

legislative intent from the statute's plain language, "considering the text of the

provision in question, the context of the statute in which the provision is found,

related provisions, amendments to the provision, and the statutory scheme as a

whole." Ass'n of Wash. Spirits, 182 Wn.2d at 350 (citing Dep't of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).

      II.    The Intrastate Detainers Act, Chapter 9.98 RCW, Gives Prisoners the
             Right To Request a Trial on Untried Charges within 120 Days

      The State argues that Peeler's initial request for final disposition of the untried

Skagit County charge did not meet the IDA's requirements. The State concludes

that because Peeler's request was invalid, the 120-day time limit did not apply and

Peeler's trial was timely. Suppl. Br. ofPet'r at 1, 8-10, 12. The Court of Appeals,

on the other hand, held that Peeler's request was valid and that the State failed to

bring him to trial within 120 days of receiving his valid request, warranting dismissal

of the Skagit County charge with prejudice. Peeler, 2014 WL 720879, at *5.

      The IDA gives Washington State prisoners the right to request a trial on

untried charges within 120 days of the request. State v. Morris, 126 Wn.2d 306,

310, 892 P.2d 734 (1995); RCW 9.98.010(1).




                                           6
State v. Peeler (Ryan James), No. 90068-0


      The procedures for making that final disposition request, honoring that

request, and remedying a violation of the right to have such a request honored are

provided by statute. RCW 9.98.010 states,

      ( 1) Whenever a person has entered upon a term of imprisonment in a
      penal or correctional institution of this state, and whenever during the
      continuance of the term of imprisonment there is pending in this state
      any untried indictment, information, or complaint against the prisoner,
      he or she shall be brought to trial within one hundred twenty days after
      he or she shall have caused to be delivered to the prosecuting attorney
      and the superior court of the county in which the indictment,
      information, or complaint is pending written notice of the place of his
      or her imprisonment and his or her request for a final disposition to be
      made of the indictment, information, or complaint: PROVIDED, That
      for good cause shown in open court, the prisoner or his or her counsel
      shall have the right to be present, the court having jurisdiction of the
      matter may grant any necessary or reasonable continuance. The request
      of the prisoner shall be accompanied by a certificate of the
      superintendent having custody of the prisoner, 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 of the prisoner, and any
      decisions of the indeterminate sentence review board relating to the
      pnsoner.

             (2) The written notice and request for final disposition referred
      to in subsection (1) of this section shall be given or sent by the prisoner
      to the superintendent having custody of him or her, who shall promptly
      forward it together with the certificate to the appropriate prosecuting
      attorney and superior court by certified mail, return receipt requested.

      This statute provides a two-stage process: First, a prisoner makes a request for

a speedy and final disposition of untried charges, which "'shall be given or sent by

the prisoner to the superintendent having custody of him'." Morris, 126 Wn.2d at


                                           7
State v. Peeler (Ryan James), No. 90068-0


310 (quoting RCW 9.98.010(2)). Second, the superintendent who has custody ofthe

prisoner forwards both this request and a certificate containing particular details to

the appropriate prosecuting attorney and superior court.            !d. (citing RCW

9.98.01 0(2)).

      This statute also provides a strict time limit and remedy. It specifies that the

prosecutor's and the superior court's actual receipt of the request triggers the 120-day

time limit. Id. at 313 (citing RCW 9.98.010(1)-(2)). The statutory remedy is clear and

harsh: if the State fails to bring the prisoner to trial within 120 days of the

prosecutor's and the superior court's receipt of the final disposition request, "no

court of this state shall any longer have jurisdiction thereof, nor shall the untried

indictment, information or complaint be of any further force or effect, and the court

shall enter an order dismissing the same with prejudice." 1 RCW 9.98.020.

       Thus, as this court has recognized-and as the Court of Appeals in this case

held-the prosecutor has the responsibility to ensure that defendants are timely

brought to trial. Morris, 126 Wn.2d at 314.




       1
        The harshness of the remedy of dismissal with prejudice demonstrates the
high value that the legislature placed on encouraging the expeditious and orderly
disposition of charges and determination of the proper status of any and all detainers
based on untried charges. See State v. Morris, 74 Wn. App. 293, 297, 873 P.2d 561
(1994), aff'd on other grounds, 126 Wn.2d 306 (discussing IDA's purpose); State v.
Flinn, 154 Wn.2d 193, 199 n.1, 110 P.3d 748 (2005) (noting the "harsh remedy of
dismissal with prejudice" for failure to comply with time for trial rules).
                                           8
State v. Peeler (Ryan James), No. 90068-0


      III.   Peeler Satisfied the Requirements Described m the IDA's Plain
             Language

      In this case, Peeler's first final disposition request met all of the statutory

requirements. The first step that the prisoner must take to request final disposition,

according to the statute, is to submit a notice and request for final disposition to the

superintendent having custody of him. Id. at 310 (citing RCW 9.98.010(2)). Peeler

completed that step for requesting final disposition of the Skagit County assault

charge when, while imprisoned at WCC on a Snohomish County charge, he

completed a "Notice of Place of Imprisonment and Request for Final Disposition of

Untried Indictment, Information or Complaint (RCW 9.98.010)" and submitted it to

the WCC superintendent, who had custody of him. CP at 18, 84.          Peeler's request

also met the requirements for the second step of the process for requesting final

disposition of the Skagit County charge.            That second step required the

superintendent having custody of Peeler to forward Peeler's final disposition request

together with a certificate containing various details to the appropriate prosecuting

attorney and superior court. Morris, 126 Wn.2d at 310 (citing RCW 9.98.010(2)).

On October 24, 2011, WCC completed the certificate of inmate status, which

correctly stated Peeler's term of commitment for his sentence on the Snohomish

County charge; time already served and time remaining to be served on the sentence;

amount of good time earned; date of parole eligibility; and any relevant decisions of


                                           9
State v. Peeler (Ryan James), No. 90068-0


the indeterminate sentence review board. CP at 19; RCW 9.98.010(1). WCC then

sent the request and the certificate to the Skagit County prosecutor and superior

court. Morris, 126 Wn.2d at 310 (citing RCW 9.98.010(2)). The prosecutor and the

superior court received them on October 26, 2011, which commenced the 120-day

time limit. Id. at 313; CP at 85, 283-84. The statute contains no additional steps or

requirements for completing a valid final disposition request. The State failed to

bring Peeler to trial by February 23, 2012, when the 120-day time limit expired.

      Accordingly, in October 2011, Peeler made a valid disposition request of the

Skagit County charge while serving his sentence on the Snohomish County charge.

The State failed to honor this request when it did not timely bring him to trial. The

appropriate remedy for the State's failure to meet its statutory obligation was to

dismiss the Skagit County charge with prejudice. RCW 9.98.020.

      IV.    RCW 9.98.010 Imposes No Physical Location Requirement

      Although Peeler complied with all of the enumerated procedural requirements

for a valid disposition request, the State and the dissent seek to insert an additional

requirement into RCW 9.98.010 based on the prisoner's physical location. We

decline to write this additional requirement into the statute.

             A. Notice of The Place of Imprisonment

      The State acknowledges that Peeler was physically located at WCC when he

submitted his notice of his place of imprisonment. Suppl. Br. ofPet'r at 8. But the

                                          10
State v. Peeler (Ryan James), No. 90068-0


State claims that Peeler's final disposition request became complete only when

WCC completed the certificate of inmate status, which occurred while he was in

King County. Id. at 9. Thus, the State asserts, "Peeler was no longer in the location

where he provided the 'written notice of the place of his or her imprisonment,"' and

that "Peeler was no longer available to have a proper request from 'the

superintendent having custody of him or her' since he was no longer in that prison." 2

Id.

      The State cites the statutory language "written notice of the place of his or her

imprisonment" to support its reading ofRCW 9.98.010. But contrary to the State's

assertions, RCW 9.98.010 does not require that a prisoner be physically present in




      2
         We deny Peeler's motion to strike the brief of Amicus Curiae Washington
Association of Prosecuting Attorneys (WAPA) citing cases outside of Washington
to argue that we should toll the 120-day time limit during any time that a defendant
is "unable to stand trial" due to proceedings in another jurisdiction. Br. of Amicus
Curiae Wash. Ass'n of Prosecuting Attorneys at 7-11. We note that the Court of
Appeals dismissed a similar argument that the State raised following oral argument
in that court. Peeler, 2014 WL 720879, at *4 n.4. We also deny Peeler's motion to
supplement the record in response to this amicus brief. Peeler seeks to admit
documents that he claims establish procedural facts related to the amicus W AP A's
tolling argument. Resp't Motion to Strike New Arguments Raised in Amicus Brief
Filed by W AP A or Permit Supplementation of the Record at 4-7. Peeler fails to meet
the requirements of RAP 9.11 to permit supplementation of the record. Procedural
facts relating to Peeler's transport to and from King County are already available in
the record. CP at 39-42, 84 (Peeler's transport order in King County entered
September 28, 2011); CP at 36, 44, 82 (Peeler transported from WCC to King
County on October 18, 2011); CP at 48-51, 85 (Peeler's resolution of King County
cases by plea to a term of imprisonment).
                                           11
State v. Peeler (Ryan James), No. 90068-0


the pnson where he is servmg a term of imprisonment at the time that the

superintendent submits the request and the prosecutor and superior court receive it.

Rather, the statute requires a prisoner to "give[] or sen[ d]" a notice and request "to

the superintendent having custody of him." RCW 9.98.010(2) (emphasis added).

This is obviously a reference to who has "custody" of the prisoner when the prisoner

"gives or sends" his request "to" that superintendent. On October 7, 2011, Peeler

fulfilled this requirement by providing a disposition request that stated accurately,

"I am a prisoner confined at the Washington Corrections Center." CP at 18.          He

then forwarded this request to WCC, which had custody of him at that time. CP at

84. Peeler complied with all of the IDA's requirements described in its plain,

unambiguous language. We decline to insert additional language or requirements in

an unambiguous statute when the legislature chose not to do so. 3 State v. Delgado,

148 Wn.2d 723, 727, 63 P.3d 792 (2003). 4



       3
          The dissent also argues that the statute's purpose is "to facilitate
transportation and the processing of the prisoner's case within the 120 day period"
and then concludes that "[:fJor the statute to serve its purpose, the prosecutor must
have correct notice of the location of the prisoner when the request is received."
Dissent at 8. This is an attempt to insert a physical location requirement into the
statute, despite the fact that the legislature did not do so.
       4
        Note that this case does not present the question of whether a prisoner who
had already been transported to a county jail, and who "gives" or "sends" his request
from there, fulfills the statute's requirements. Peeler was at WCC when he submitted
his request.
                                            12
State v. Peeler (Ryan James), No. 90068-0


      The State's reading of the statute also contradicts the legislature's intent that the

act apply "whenever" a person has entered upon a term of imprisonment and

"whenever during the continuance of the term of imprisonment" the prisoner faces

pending untried charges. RCW 9.98.010(1); WEBSTER'S THIRD NEW INTERNATIONAL

DICTIONARY 2602 (2002) ("whenever" means "at any or all times : in any or every

instance ... at whatever time : no matter when"). The State's interpretation would

defeat the statute's purpose because inmates have no control over the facility in which

they serve their sentences and can be moved without advance notice. See State v. Silva,

106 Wn. App. 586, 592, 24 P.3d 477 (2001) (court must avoid "strained or absurd

results" that defeat the purpose of a statute). Because no court suspended or vacated

Peeler's prison sentence on the Snohomish County charge, he was still a prisoner

continuing his term of imprisonment while he was temporarily in King County. See

RCW 72.68.010 (permitting prisoner's "transfer to another institution"); State v.

Bishop, 134 Wn. App. 133, 139, 139 P.3d 363 (2006) (defendant's time spent

awaiting resentencing after removal from a drug rehabilitation program did not

remove her from her original sentence; defendant remained under her term of

imprisonment when she requested disposition of Washington charges under the

Interstate Agreement on Detainers, chapter 9.100 RCW). The State could have




                                            13
State v. Peeler (Ryan James), No. 90068-0


sought a continuance within the 120-day period under RCW 9.98.010(1) to enable the

superior court to retain jurisdiction over Peeler's assault case, but it did not do so. 5

       Again, the IDA's plain language 6 requires only that the prisoner accurately

indicate the location from which the prisoner makes the request at the time that he

or she submits it; the IDA does not require a prisoner to be physically present at the

same site from which the prisoner makes the request at any other time. RCW

9.98.010(1). The State seeks to distinguish between the prisoner's physical location

on the date that the prisoner submits a request for final disposition and the date that

this request is completed or received. But the statute's plain language creates no



       5
        The dissent expresses concern that the defendant might be unavailable to
appear at a continuance hearing if he is not available to be transported for trial.
Dissent at 11. While this is a valid concern, we are in no position to override the
legislature's determination that the opportunity for a court to grant "any necessary
or reasonable continuances" provides an appropriate means of avoiding the harsh
remedy of dismissing the charges. RCW 9.98.010(1).

       6
         [W]henever during the continuance of the term of imprisonment
       there is pending in this state any untried indictment, information,
       or complaint against the prisoner, he or she shall be brought to
       trial within one hundred twenty days after he or she shall have
       caused to be delivered to the prosecuting attorney and the
       superior court of the county in which the indictment,
       information, or complaint is pending written notice of the place
       of his or her imprisonment and his or her request for a final
       disposition to be made of the indictment, information, or
       complaint.

!d. (emphasis added).
                                             14
State v. Peeler (Ryan James), No. 90068-0


such distinction. As stated above, we will not insert language into an unambiguous

statute that the legislature chose not to include. Delgado, 148 Wn.2d at 727.

                          Superintendent Having Custody

      Building on its attempt to insert a continuing physical location requirement

into the IDA, the State claims that Peeler's request was inaccurate and therefore

invalid because, when the State received it, Peeler "was no longer in the custody of

the Superintendent of [DOC] but in pretrial custody of another county." Suppl. Br.

ofPet'r at 9-10 (boldface omitted). Specifically, the State argues that because Peeler

was in King County when the State received his demand, WCC lacked custody of

him and the request failed to identify his location accurately, and therefore his

request was invalid. ld. The State further argues that Peeler's request failed to

comply with RCW 9.98.010(2), claiming that WCC "could not have properly issued

Peeler's Certificate of Inmate Status on October 24, 2011, because Peeler was no

longer in [WCC] but was in King County." ld. at 12.

      The State relies on the statutory language requiring the prisoner to submit

written notice of the place of imprisonment "to the superintendent having custody

of the prisoner," RCW 9.98.010(1), and also the statute's requirement "written

notice and request for final disposition referred to in subsection ( 1) of this section

shall be given or sent by the prisoner to the superintendent having custody of him,"

RCW 9.98.010(2), to support its argument that Peeler's temporary absence from

                                          15
State v. Peeler (Ryan James), No. 90068-0


WCC interrupted the term of imprisonment and WCC's custody over Peeler under

the IDA.    This interpretation depends on the notion that we should construe

"custody" in the IDA strictly to mean "physical custody." But "custody" generally

means "care and control," not necessarily physical location.           BLACK's LAW

DICTIONARY 467 (lOth ed. 2014). DOC certainly thought that it still had "custody"

over Peeler when he was serving his sentence but transferred out to King County.

DOC records tracked Peeler's "external movement" to King County, noting that he

was "Out To Court" while he was serving his sentence on the Snohomish County

charge. CP at 36. Although movements documented in DOC records include

"Custody Change," these records indicate no custody changes when Peeler was "Out

To Court" in King County. I d. These notations are consistent with the fact that "the

state political system ... remains in legal custody of the prisoner" even after transfer

to an out of state institution. 7 In re Pers. Restraint of Young, 95 Wn.2d 216, 234,

622 P.2d 373 (1980) (Utter, C.J., concurring). If DOC retains custody of a prisoner

even after the prisoner's transfer out of state, then we can infer that DOC maintains

legal custody of the prisoner after transfer to an in-state institution. See also Jones


      7
         The dissent concedes this point. It acknowledges that "while in King
County, Peeler remained in the formal custody of DOC because he continued to
serve a term of imprisonment for his Snohomish County conviction." Dissent at 9.
Its conclusion that "custody" means something different in the statute at issue
ignores the legislature's chosen language.

                                           16
State v. Peeler (Ryan James), No. 90068-0


v. Cunningham, 371 U.S. 236, 241, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963) (state

prisoner on parole remains in "custody" for purposes of federal habeas corpus 28

U.S.C. § 2241 "in custody" prerequisite); Maleng v. Cook, 490 U.S. 488, 491-93,

109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) ("in custody" prerequisite to filing federal

habeas corpus petition does not require physical confinement; prisoner is "in

custody" of state even though serving time in different institution on prior or

subsequent sentence).    Thus, the WCC superintendent retained "custody" over

Peeler even while he was "out to court" in King County and not physically located

in wee.

      The State failed to bring Peeler to trial within 120 days of receiving his valid

disposition request. 8   Because the Skagit County Superior Court granted no


      8
         The only case law that the State cites to support its contentions is not
persuasive. The State cites State v. Slattum, 173 Wn. App. 640, 655, 295 P.3d 788
(2013), noting that the case "evaluated the phrase 'term of imprisonment' under
RCW 10.73.170 and compared it to that phrase in ... RCW 9.98.010(1)," and
explained that this language meant "'confinement in a particular location."' Supp.
Br. of Pet'r at 7-8 (quoting Slattum, 173 Wn. App. at 655). But the "particular
location" identified in the statute as the Court of Appeals noted in Slattum, is "a
penal or correctional institution of this state." Slattum, 173 Wn. App. at 655
(emphasis omitted); RCW 9.98.010(1). Here, Peeler was serving a term of
imprisonment at the wee, a state correctional facility, when he initiated his final
disposition request.

      The State also cites State v. Rising, 15 Wn. App. 693, 695, 552 P.2d 1056
(1976), State v. Rolax, 7 Wn. App. 937, 940, 503 P.2d 1093 (1972), and State v.
Johnson, 79 Wn.2d 173, 176, 483 P.2d 1261 (1971), for the proposition, "'A
defendant's formal request is a prerequisite to the commencement of the running of
                                         17
State v. Peeler (Ryan James), No. 90068-0


continuances, the mandatory language in RCW 9.98.020 commanded that the court

"shall" dismiss the Skagit County charge with prejudice. 9

      We recognize that ruling in Peeler's favor might raise practical concerns about

prisoners facing charges in multiple counties having charges dismissed because the

State is unable to timely transport the prisoner among the various counties. Supp.

Br. of Pet'r at 12-15. Indeed, when a prisoner faces trials in multiple counties,

nothing in the IDA prevents the prisoner from requesting multiple final dispositions

simultaneously, arguably requiring the State to transport the prisoner among

counties within a short period of time for trial or for a continuance hearing. RCW

9.98.010(1). The State is therefore correct that this is inconvenient and expensive.

But "we do not rewrite [the law] to insert our own policy judgments." In re Custody

of B.MH., 179 Wn.2d 224, 266-67, 315 P.3d 470 (2013) (Wiggins, J., dissenting in




the 120-day time period."' Suppl. Br. of Pet'r at 8. And the State cites State v.
Young, 16 Wn. App. 838, 840, 561 P.2d 204 (1977) for the notion, "Compliance
with the requirements ofRCW 9.98.010 is required in order to claim the benefit of
the 120-day time period resulting in dismissal under RCW 9.98.020." 1d. These
propositions are certainly correct. Indeed, as we discussed, because Peeler's formal
request for final disposition in October 2011 complied with the IDA, the
prosecutor's receipt of this request commenced the 120-day time period. Thus,
Peeler can claim the benefit of the 120-day time period for dismissal of the Skagit
County charge.
       9
       See Erection Co. v. Dep 't of Labor & Indus., 121 Wn.2d 513, 518, 852 P .2d
288 (1993) ("It is well settled that the word 'shall' in a statute is presumptively
imperative and operates to create a duty." (collecting cases)).
                                         18
State v. Peeler (Ryan James), No. 90068-0


part) (citing Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 109, 285 P.3d 34

(2012); Sedlacek v. Hillis, 145 Wn.2d 379, 390, 36 P.3d 1014 (2001)). The State's

argument about balancing of convenience and economy with timely and orderly

disposition of charges is best directed to the legislature. 10

                                    CONCLUSION

      The State failed to bring Peeler to trial on the Skagit County charge within

120 days of receiving his final disposition request that satisfied the requirements of

RCW 9.98.010.       We affirm the Court of Appeals' decision reversing Peeler's

conviction and judgment and remanding to the Skagit County Superior Court to

dismiss with prejudice.




       10
        While we agree with the dissent that these practical and policy concerns are
important, dissent at 12, we disagree that these concerns can override the plain,
unambiguous statutory language.
                                        19
State v. Peeler (Ryan James), No. 90068-0




 WE CONCUR:




                                       20
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)




                                     No. 90068-0

       FAIRHURST, J. (dissenting)-! dissent because the State did not violate the

intrastate detainers act (IDA), chapter 9.98 RCW. Ryan James Peeler's first request

for final disposition did not comply with the IDA and, therefore, did not trigger the

120 day period. Peeler's second request for final disposition was sufficient to start

the 120 day period under the IDA, and a trial was timely set. To reach its holding,

the majority misinterprets the requirements of the IDA.

       This case involves Peeler's requests for final disposition of an untried

information under the IDA. The IDA provides that an incarcerated defendant may

request a trial on any untried charges. RCW 9.98.010(1). Once the request is received

by the prosecuting attorney, a trial must be set within 120 days. If a trial is not set

within 120 days from the receipt of the request, the untried charges must be

dismissed with prejudice. RCW 9.98.020. The issue in this case is whether Peeler's

first request for final disposition was sufficient to trigger the 120 day period.



                                           1
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



           The Court of Appeals found that the 120 day period under the IDA began

when Peeler's first request for a speedy disposition was received by the Skagit

County prosecuting attorney on October 26, 2011 and the period expired on

February 23, 2012. State v. Peeler, noted at 179 Wn. App. 1038, 2014 WL 720879,

at   *1.   Since Peeler's trial was not set until April 9, 2012, the Court of Appeals

remanded the case to dismiss the Skagit County charge with prejudice. 2014 WL

720879, at *5.

           The majority affirms the Court of Appeals and holds that the State violated

the IDA by not bringing Peeler to trial within 120 days of receiving his request. I

dissent and would reverse the Court of Appeals and remand the case to address

Peeler's unresolved claims. 1

A.         Standard of review

           We review statutory interpretation de novo. State v. Gray, 174 Wn.2d 920,

926,280 P.3d 1110 (2012). The objective in interpreting a statute is to ascertain and

carry out the legislature's intent. Id. The process of statutory interpretation begins




           1
         Peeler's brief to the Court of Appeals asserted that the trial court violated Peeler's rights
to due process of law by not providing the jury with an instruction on the inferior degree offense
of fourth degree assault in a prosecution for second degree assault. Appellant's Opening Br. at 2.
In addition, Peeler argued that the aggravating factor in RCW 9.94A.535(2)(y) is unduly vague
and violates the Sixth and Fourteenth Amendments to the United States Constitution as well as
RCW 9.94A.530(3). Id. Because the Court of Appeals reversed Peeler's conviction, it did not
address these contentions. Peeler, 2014 WL 720879, at *5.
                                                  2
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



with the statute's plain meaning. Lake v. Woodcreek Homeowners Ass 'n, 169 Wn.2d

516,526,243 P.3d 1283 (2010). If a statute's meaning is plain on its face, we give

effect to that plain meaning. Gray, 174 Wn.2d at 927. The court cannot add words

or clauses to unambiguous statutes. State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d

792 (2003). "A statute is ambiguous when it is 'susceptible to two or more

reasonable interpretations,' but 'a statute is not ambiguous merely because different

interpretations are conceivable."' Gray, 174 Wn.2d at 927 (internal quotation marks

omitted) (quoting Estate of Has elwood v. Bremerton Ice Arena, Inc., 166 Wn.2d

489,498,210 P.3d 308 (2009)).

B.     The State did not violate the IDA

       The IDA gives incarcerated defendants within Washington State the right to

request trial on any untried charge. State v. Morris, 126 Wn.2d 306, 310, 892 P.2d

734 (1995). A trial must be set for the charge within 120 days after the prosecuting

attorney receives a valid, written request. !d. at 314.

        The IDA provides:

        ( 1) Whenever a person has entered upon a term of imprisonment in a
        penal or correctional institution of this state, and whenever during the
        continuance of the term of imprisonment there is pending in this state
        any untried indictment, information, or complaint against the prisoner,
        he or she shall be brought to trial within one hundred twenty days after
        he or she shall have caused to be delivered to the prosecuting attorney
        and the superior court of the county in which the indictment,
        information, or complaint is pending written notice of the place of his

                                            3
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



       or her imprisonment and his or her request for a final disposition to be
       made of the indictment, information or complaint: PROVIDED, That
       for good cause shown in open court, the prisoner or his or her counsel
       shall have the right to be present, the court having jurisdiction of the
       matter may grant any necessary or reasonable continuance. The request
       of the prisoner shall be accompanied by a certificate of the
       superintendent having custody of the prisoner, 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 of the prisoner, and any
       decisions of the indeterminate sentence review board relating to the
       pnsoner.
               (2) The written notice and request for final disposition referred
       to in subsection ( 1) of this section shall be given or sent by the prisoner
       to the superintendent having custody of him or her, who shall promptly
       forward it together with the certificate to the appropriate prosecuting
       attorney and superior court by certified mail, return receipt requested.
               (3) The superintendent having custody of the prisoner shall
       promptly inform him or her in writing of the source and contents of any
       untried indictment, information, or complaint against him or her
       concerning which the superintendent has knowledge and of his or her
       right to make a request for final disposition thereof.
               (4) Escape from custody by the prisoner subsequent to his or her
       execution of the request for final disposition referred to in subsection
       ( 1) of this section shall void the request.

RCW 9.98.010. 2

        The IDA sets up a two-stage process for a prisoner to seek final disposition of

an untried charge. Morris, 126 Wn.2d at 310. First, the prisoner makes the request

for a final disposition of the untried charges. I d. This request is given or sent by the



        2
        The current version ofRCW 9.98.010 is quoted above, and the current version of chapter
9.98 RCW will be cited throughout this memorandum. The statute was changed in 2011 to make
it gender neutral. See LAws OF 2011, ch. 3 3 6, § 345.
                                              4
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



prisoner to the superintendent having custody of him. I d. Second, the superintendent

having custody of the prisoner forwards the request with a certificate stating the term

of confinement and other details appropriate for the prosecuting attorney and

superior court. Id.; RCW 9.98.010(1). As provided in the statute, the 120 day period

begins only when the prisoner "shall have caused to be delivered to the prosecuting

attorney and the superior court . . . written notice of the place of his or her

imprisonment and his or her request for a final disposition." RCW 9.98.010(1); see

also Morris, 126 Wn.2d at 314. Once the appropriate prosecuting attorney receives

a valid request, the IDA requires the prosecuting attorney to bring the defendant to

trial within 120 days. Morris, 126 Wn.2d at 314.

       The Court of Appeals held that Peeler's first request was effective when

received by the prosecuting attorney because Peeler continued to serve a term of

imprisonment while in the King County jail. Peeler, 2014 WL 720879, at *4-5.

According to the Court of Appeals, Peeler's subsequent change of location did not

void or nullify his first request. I d. at *5. While the Court of Appeals was correct in

finding that Peeler was serving a term of imprisonment, 3 it erred in assessing the

validity of Peeler's request for final disposition.


        3
       To interpret the IDA, courts have looked to the intent and language of the interstate
agreement on detainers (Interstate Agreement), chapter 9.100 RCW. See Morris, 126 Wn.2d at
310. The Interstate Agreement is an interstate compact with parallel language and intent to the
IDA. Id. The Interstate Agreement applies to prisoners who have "entered upon a term of
                                              5
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



       The majority holds that Peeler's first request complied with the IDA because

Peeler made a request for final disposition while imprisoned and the superintendent

having custody of Peeler at the time he made the request forwarded the request along

with the necessary certificate to the prosecuting attorney and superior court. Majority

at 9. The prosecuting attorney has the responsibility to bring the prisoner to trial

within 120 days and as the majority notes, failure to do so results in a harsh penalty.

!d. at 8. However, the majority fails to acknowledge that a prisoner must also strictly

comply with the statute to trigger the 120 day period. State v. Young, 16 Wn. App.

838, 840, 561 P.2d 204 (1977) (noting that the statute requires a defendant to make

a formal, written request for disposition as a prerequisite to triggering the 120 day

period); In re Pers. Restraint ofMyers, 20 Wn. App. 200,205, 579 P.2d 1006 (1978)

("[O]nly those individuals who have complied with the statute and have submitted a




imprisonment in a penal or correctional institution" or who during the continuance of a term of
imprisonment have untried charges lodged against them by other states or the federal government.
RCW 9.100.010 art. III. When interpreting the Interstate Agreement courts have found that the
phrase "term of imprisonment" requires that a prisoner is confined in some manner and continues
to serve a prison sentence. See United States v. Dobson, 585 F.2d 55, 58-59 (3rd Cir. 1978) ("that
definable period of time during which a prisoner must be confined in order to complete or satisfy
the prison term or sentence which has been ordered" (emphasis omitted)). Peeler was confined in
the King County jail and continued to serve his prison sentence for the Snohomish County
conviction. A prisoner's temporary absence from a state prison does not interrupt a term of
imprisonment. See State v. Bishop, 134 Wn. App. 133, 139, 139 P.3d 363 (2006) (finding that
under the Interstate Agreement a prisoner was serving a term of imprisonment while in a drug
rehabilitation program and during resentencing after her removal from the drug program because
she was never released from her original sentence).


                                                6
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



written request for disposition of the pending action may claim the benefit of the

120-day time period.").

       1.     Peeler's first request for final disposition of the Skagit County charge
              was ineffective when received by the prosecuting attorney

       An effective request for final disposition under the IDA is actually a package

that includes three parts: (1) the prisoner's "request for a final disposition," (2) the

prisoner's "written notice of the place of his or her imprisonment," and (3) "a

certificate of the superintendent having custody of the prisoner" stating the details

of the prisoner's incarceration. RCW 9.98.010(1). Peeler's case turns on whether his

first request met all three requirements to trigger the 120 day period. See Young, 16

Wn. App. at 840 (requirements ofRCW 9.98.010 must be met in order to commence

the running of that statute's 120 day period). Peeler's request was inadequate as to

requirements (2) and (3).

               a)     Peeler's request did not list his correct place of imprisonment

        The 120 day period begins when the prosecuting attorney receives the request.

Morris, 126 Wn.2d at 314. Although Peeler's request was accurate when he wrote it

on October 7, 2011, when the prosecuting attorney received the request on October

26, 2011, Peeler's place of imprisonment was the King County jail. According to

the majority, the IDA does not require that a prisoner be physically present in the

prison that he or she lists on the request at the time that the superintendent submits

                                            7
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



the request and the prosecuting attorney receives it because there is no explicit

physical location requirement in the IDA. Majority at 10. The majority finds that the

plain language of the statute requires that the prisoner list only the correct location

from which he or she made the request. !d. at 14.

       However, the purpose of requiring the prisoner to provide notice of his or her

place of imprisonment, although not explicitly stated in the IDA, is to facilitate

transportation and the processing of the prisoner's case within the 120 day period.

See Morris, 126 Wn.2d at 307 (purpose ofthe statute is to enable prisoners to have

pending matters addressed within 120 days). For the statute to serve its purpose, the

prosecuting attorney must have correct notice of the location of the prisoner when

the request is received. Otherwise, as happened in this case, the prosecuting attorney

cannot execute a transport order to where the prisoner says he is located. Peeler's

request failed to inform the prosecuting attorney of his correct location and thus was

not sufficient to trigger the 120 day period under RCW 9.98.010(1).

               b)     The certificate that accompanied the request was not issued by
                      the superintendent having custody of Peeler

       The word "custody" is not defined in the IDA. When a phrase is not given a

specific statutory definition, the words in the statute are given their common law or

ordinary meaning. AllianceOne Receivables Mgmt., Inc. v. Lewis, 180 Wn.2d 389,

395, 325 P.3d 904 (2014). The word "custody" is defined as "[t]he care and control

                                           8
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



of a thing or person for inspection, preservation, or security." BLACK'S LAW

DICTIONARY 467 (lOth ed. 2014). As used in the IDA, the plain meaning ofthe term

"custody" refers to the facility that actually has care and control of the prisoner.

Here, when Peeler was at the King County jail for pretrial matters, he was under the

immediate control of King County. Because King County had custody of Peeler on

October 18, 2011, a Department of Corrections (DOC) superintendent at the

Washington Corrections Center (WCC) in Shelton could not accurately issue a

certificate of inmate status on October 24, 2011. The superintendent at WCC did not

then have "custody." RCW 9.98.010(1) ("certificate of the superintendent having

custody of the prisoner"), (2) ("superintendent having custody of him or her"), (3)

("superintendent having custody of the prisoner").

       Peeler and the majority are correct that while in King County, Peeler remained

in the formal custody of DOC because he continued to serve a term of imprisonment

for his Snohomish County conviction. State v. Swenson, 150 Wn.2d 181, 192, 75

P.3d 513 (2003) (noting that once a defendant is charged and sentenced he or she is

in the formal custody of DOC even if transported to a different county); State v.

Smeltzer, 86 Wn. App. 818, 821, 939 P.2d 1235 (1997) ("[A]fter sentencing, all

felons are under the jurisdiction of the state's penal system, which includes even the

county jails."). However, the word "custody" as used in the IDA must reference


                                          9
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



something more specific than the formal custody of DOC. Every prisoner that can

make a request under the IDA is in the formal custody of DOC because he or she is

serving a term of imprisonment. To enable the prosecuting attorney to bring the

prisoner to trial within 120 days, the superintendent that actually has custody of the

prisoner must certify the request. Here, that would be the superintendent or other

official with that capacity at the King County jail.

       2.      The majority's holding frustrates the purpose of the IDA

       The majority's interpretation of the IDA will allow prisoners with multiple

charges in different counties to take advantage of the IDA to get untried charges

against them dismissed with prejudice. Once transported out of a DOC correctional

facility and to a county jail, a prisoner is unavailable for transportation to another

county jail to attend a continuance hearing or trial on other charges. See Swenson,

150 Wn.2d at 190 (affirming the trial court's finding that once the prisoner was

transported to King County he could not be transported to Jefferson County before

returning to the correctional facility and DOC custody); see also City of Seattle v.

Guay, 150 Wn.2d 288, 298, 76 P.3d 231 (2003) (noting that while a prosecuting

attorney can issue a transport order, there is no mechanism to compel another

jurisdiction or court to obey that order). Therefore, to transport a prisoner to attend

trial or a continuance hearing, the prosecuting attorney must wait for the prisoner to


                                           10
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



be returned to a DOC correctional facility, which could occur beyond the 120 day

time limit despite the prosecuting attorney's efforts. Swenson, 150 Wn.2d at 192.

       The Court of Appeals faulted the prosecuting attorney for inaction. Peeler,

2014 WL 720879, at *5. However, the prosecuting attorney issued a formal transport

order the day after receiving Peeler's request. It was Peeler's inaccurate request that

thwarted the process, not the prosecuting attorney's inaction or imprudence. The

Court of Appeals also faulted the prosecuting attorney for not seeking a continuance.

The IDA provides that "for good cause shown in open court, the prisoner or his or

her counsel shall have the right to be present, the court having jurisdiction of the

matter may grant any necessary or reasonable continuance." RCW 9.98.010(1).

However, if the prisoner cannot be transported for trial, it is unlikely that he or she

also can be transported to attend a continuance hearing. Therefore, seeking a

continuance does not resolve the issue here, as the Court of Appeals suggested.

        Moreover, the majority's interpretation contravenes the intent of the

legislature to create a system that results in the timely and orderly disposition of

charges. As the majority acknowledges, under its interpretation a prisoner could

make multiple final disposition requests simultaneously, resulting in prosecuting

attorneys submitting conflicting transport orders and the dismissal of untried charges

due simply to logistics and not the carelessness of a prosecuting attorney. Majority


                                           11
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



at 18. The majority dismisses the practical implications of its holding by stating that

these issues should be addressed to the legislature. However, the plain language of

the IDA does not dictate this result; rather these practical problems arise from the

majority's interpretation of the IDA.

       Requiring that a final disposition request provide accurate notice of the

prisoner's place of imprisonment when received by the prosecuting attorney and be

accompanied by a certificate from the superintendent with actual custody of the

prisoner comports with the purpose of the IDA and resolves the practical issues with

the majority's interpretation. Because Peeler's first request for final disposition of

the Skagit County charge was not accurate when received, I would hold that the

request was not effective to commence the 120 day period under the IDA.

C.     Peeler's second request for final disposition of the Skagit County charge was
       effective

       Peeler's second request for final disposition of the Skagit County charge made

on January 20, 2012, was effective. Peeler made a request for final disposition of the

Skagit County charge and provided written notice of his place of imprisonment.

DOC issued a certificate of offender status on January 25, 2012. Peeler remained at

WCC until he was transported to Skagit County Superior Court on February 2, 2012

pursuant to a transport order by the Skagit County prosecuting attorney. A trial date



                                           12
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)



was set for April 9, 2012, within the 120 day period based on Peeler's second

request.

                                   CONCLUSION

       Peeler's first request for final disposition of the Skagit County charge was not

effective when received by the prosecuting attorney. The IDA requires that a

prisoner initiate the process by providing written notice of his place of imprisonment

to the superintendent, and that notice, as well as a certificate from the superintendent

having custody of him or her, be forwarded to the prosecuting attorney of the county

where the outstanding charge is pending. The 120 day period begins when a

prosecuting attorney receives the prisoner's request. When the Skagit County

prosecuting attorney received Peeler's request, the request did not provide accurate

notice ofPeeler's place of imprisonment, and the certificate of inmate status was not

completed by the superintendent with custody of Peeler. The request failed to

commence the 120 day period. Peeler's second request was effective, and Peeler was

timely brought to trial on the Skagit County charge pursuant to the request. I would

reverse the Court of Appeals and remand this case to the Court of Appeals to resolve

Peeler's unresolved claims. I respectfully dissent.




                                           13
State v. Peeler, No. 90068-0
Fairhurst, J. (dissenting)




                               14
