IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) No. 1 CA-CR ) Appellant, ) DEPARTMENT D ) v. ) MEMORANDUM DECISION ) (Not for Publication - MARCUS WALTER MARK, ) Rule 111, Rules of the ) Arizona Supreme Court) Appellee. ) ) ) ) ) Appeal from the Superior Court in Maricopa County Cause No. CR The Honorable Steven K. Holding, Commissioner REVERSED AND REMANDED Andrew P. Thomas, Maricopa County Attorney By E. Catherine Leisch, Deputy County Attorney Attorneys for Appellant James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellee Phoenix Phoenix S W A N N, Judge

2 1 The State appeals from the trial court s dismissal of an indictment with prejudice against Marcus Walter Mark ( Mark ) for a violation of his speedy trial rights. We conclude that because Mark did not substantially comply with the requirements of Arizona Revised Statutes ( A.R.S. ) , Art. III(a) (2002), there was no violation of his speedy trial rights under Ariz. R. Civ. P. ( Rule ) 8 or the United States Constitution. Accordingly, we reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY 2 The procedural history of this case is remarkable. On June 30, 2000, Mark was indicted for four counts of Aggravated Driving While Under the Influence of Intoxicating Liquor ( DUI ). The indictment charged that Mark Walter Marcus committed the offenses on or about July 30, The Court Information Submittal ( CIS ) form listed the defendant s address as P.O. Box 7181, Why, Arizona A summons was sent to Mark Walter Marcus on July 5, 2000 at the address listed on the CIS form by certified mail. Marjorie Mark signed the return receipt. 3 Mark s arraignment was set for July 14, 2000, but Mark did not appear. 1 The court determined that service was not proper because Mark did not sign the return receipt. Therefore, 1 Mark s attorney asserts that Mark was in federal custody in

3 the court vacated the arraignment and ordered that a summons be reissued. 2 4 On January 7, 2002, Mark filed with the clerk of the Maricopa County Superior Court a pro per motion to quash all warrants and/or indictments that may be issued on cause number CR In his motion, Mark stated he was currently in custody of the United States Marshals at CCA Florence Arizona. The same day, Mark (acting without counsel) also filed with the clerk of the court a document entitled Disposition for Charges, which requested the court to diligently search its records to see if Maricopa County holds any warrants, indictments, information or charges within the court. The document stated that he was making himself available to the court for prosecution. Both documents were signed Marcus Mark. Neither was served on counsel for the State. 5 Mark spent the bulk of the next four years in prison, and his whereabouts were not known to the State. On April 24, 2006, at the State s request, the court quashed the summons and 2 Although the record does not contain the reissued summons, both parties agree, and the record indicates, that a second summons was issued. 3 Mark listed the name Marcus Mark as the defendant. 3

4 issued an arrest warrant. 4 The minute entry was captioned State of Arizona vs. Mark Walter Marcus. 6 On January 13, 2007, Mark found himself detained in a Pima County Jail in Ajo, Arizona. The Pima County Pretrial Service Report issued on that date stated that Mark was on Federal Probation until August 28, The release questionnaire revealed the four pending DUI charges. Mark was released from the Pima County Jail on January 13, 2007 on bond, Pima County finding no detainers or holds on file. 5 Before he was released, the Pima County Justice Court obtained two mailing addresses for Mark in Sells and Why, Arizona. 7 An arrest warrant for Mark Walter Marcus was served on Mark by the Maricopa County Sheriff s Office ( MCSO ) on January 22, Mark was appointed counsel, granted supervised release, and instructed to appear for his arraignment on January 29, Mark entered a plea of not guilty at his arraignment, and an initial pretrial conference was set for March 8, Mark failed to appear at the pretrial conference and the court ordered a bench warrant to be issued for Mark 4 The record contains nothing between the time of Mark s 2002 submissions and the April 2006 Order. When the record is incomplete, we generally must presume that the missing portions would support the lower court s decision. See State v. Scott, 187 Ariz. 474, 476, 930 P.2d 551, 553 (App. 1996). 5 On all Pima County paperwork, Mark s name is correctly entered. 4

5 Walter Marcus. The minute entry indicates that Mark s address was unknown, and that the last day for trial was July 28, On June 20, 2007, Mark was sentenced to 24 months in prison by the United States District Court in Tucson, Arizona. On July 12, 2007, Mark, using his correct name, filed a pro per motion to quash all warrants and a petition for a speedy trial or dismissal. Included in his petition was the statement that two copies of this petition are enclosed for the clerk to file one with the court and the other with the attorney for the government. On July 20, 2007, the superior court denied Mark s motion to quash. 9 On August 27, 2007, Mark s counsel filed a motion for final disposition of any untried indictment, information or complaint pending. The motion was sent to both the court and the county attorney s office and informed the State that Mark was being held at CCC-CADC, PO Box 6300, Florence, AZ The motion did not reveal that Mark was in federal custody. On September 17, 2007, the Maricopa County Superior Court ordered the Arizona Department of Corrections ( ADOC ) to release Mark Walter Marcus, aka: Marcus Walter Mark to the custody of the MCSO. 10 On September 28, 2007, Mark again filed a pro per petition for a speedy trial and a disposition of charges. Attached to this notarized petition was a certificate of service 5

6 that states that copies were sent to the clerk of the court of the Maricopa County Superior Court and the Maricopa County Attorney s Office. 11 On October 10, 2007, the court held a status conference at which Mark s attorney and the State s attorney were present, but Mark was not. The State drafted an order for the court s signature petitioning to secure the attendance of Mark Marcus for a scheduled November trial. On October 26, 2007, the court issued an order to secure the attendance of Mark Walter Marcus, an inmate of the Pinal County Jail, Florence for a November 14 hearing. 12 On November 2, 2007, the court filed a third order to secure the attendance of Mark Walter Marcus and vacated the scheduled November 14, 2007 hearing. On November 14, 2007, Mark filed with the clerk of the court another pro per petition for a speedy trial. In the petition, he stated that he was incarcerated by the bureau of prisons, in state, per contractual agreement between the U.S. Marshals, Bureau of Prisons and the Corrections Corporation of America, at the Florence Correctional Center, P.O. Box 6900, 1100 Bowling Road, Florence, Arizona On December 20, 2007, with both the State s counsel and Mark s counsel present, a bench warrant was issued for Mark Walter Marcus. The following day, Mark s counsel filed a 6

7 motion to quash the warrant. The motion informed the court and the county attorney s office that Defendant, Mark Marcus, is currently in Federal custody. The State then filed a petition for writ of habeas corpus on February 12, 2008 to obtain the custody of Mark Walter Marcus from the FCI Phoenix. The court signed the order, which was filed on February Mark appeared in superior court on March 10, In a March 11, 2008 minute entry, the court set the last day for trial on May 9, On March 27, 2008, Mark s counsel filed a motion to dismiss for violations of Rule 8.3(a) and A.R.S , the Interstate Agreement on Detainers ( IAD ). The trial court heard oral argument, and on May 21, 2008, dismissed the case with prejudice. 16 The State timely appeals. We have jurisdiction pursuant to A.R.S (Supp. 2008). DISCUSSION 17 Generally we review a trial court s dismissal of an indictment for abuse of discretion. State v. Rivera, 207 Ariz. 69, 72, 7, 83 P.3d 69, 72 (App. 2004). But we review the court s application of Rule 8.3 and the IAD de novo. State v. Burkett, 179 Ariz. 109, 111, 876 P.2d 1144, 1146 (App. 1993). 18 Neither the United States Constitution nor the Arizona Constitution s speedy trial provisions require that a trial take 7

8 place within a specific time. State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260, 1270 (1997) (citing U.S. Const. amend. VI and Ariz. Const. art. 2, 24). Rule 8 of Arizona s Rules of Criminal Procedure, however, provides stricter speedy trial rights than those provided by the United States Constitution. State v. Tucker, 133 Ariz. 304, 308, 651 P.2d 359, 363 (1982). If we find a violation of Rule 8, therefore, we are required to order the case dismissed, pursuant to Rule 8.6, without reaching appellant s constitutional claim. State v. Olson, 146 Ariz. 336, 338, 705 P.2d 1387, 1389 (App. 1985). But because we do not find such a violation, our examination includes a discussion of both the Arizona and the Constitutional speedy trial rights. We discuss each in turn. I. Arizona s Rule 8 Speedy Trial Rights A. Rule Pursuant to Rule 8.2(a)(2), a defendant who is released from custody must be tried within 180 days from the date of arraignment, unless the case is of a type described in Rule 8.2(a)(3) or (4), or time is excluded pursuant to Rule 8.4. Rule 8.4(a) requires that periods be excluded when delays are caused by or on behalf of the defendant, including... [the defendant s] inability to be arrested or taken into custody in Arizona. When a defendant voluntarily elects not to appear for a scheduled court appearance, the time period is tolled pursuant 8

9 to Rule 8.4. State v. Miller, 161 Ariz. 468, 470, 778 P.2d 1364, 1366 (App. 1989). 20 The time limit prescribed by Rule 8.2 began to run when Mark was arraigned on January 29, But on March 8, 2007, when Mark failed to appear at his scheduled pretrial conference, that time stopped running pursuant to Rule 8.4(a). Mark did not resurface until December 21, 2007, when he informed the county attorney that he was incarcerated in federal custody and sought to have the pending arrest warrant quashed. Because he was in prison by that time, his speedy trial rights were governed by Rule 8.3, not Rule 8.2. B. Rule 8.3 (1) Mark Was in the Custody of Prison Without the State 21 Rule 8.3 provides different speedy trial rights to those imprisoned within the state from those imprisoned without the state. Pursuant to the IAD, the term state is defined to include both a state of the United States and the United States of America. A.R.S , Art. II(a). For the purposes of the IAD, a person imprisoned in a federal prison located within Arizona is in custody of another state. State v. Loera, 165 Ariz. 543, 545, 799 P.2d 884, 886 (App. 1990). We conclude that despite Mark s physical presence within Arizona, he was imprisoned without the state for purposes of the rule, and that his speedy trial rights were governed by Rule 8.3(a). 9

10 (2) Mark s Pro Per Requests Did Not Substantially Comply With the IAD 22 Within 90 days after receiving a written request from a person imprisoned in another state, or a reasonable time after learning of a person s incarceration in another state, a prosecutor is required to take action as required by law to obtain the person s presence for trial. Ariz. R. Crim. P. 8.3(a). A defendant must be brought to trial within 90 days after his presence has been obtained in the receiving state. Id. 23 Article III of the IAD prescribes the means by which a prisoner is to provide the notice that triggers Rule 8.3 time limits. In pertinent part, the IAD requires the following: (1) the prisoner must prepare a written request for final disposition of the pending charges; (2) the prisoner must include in the written request the place of imprisonment; (3) the prisoner must send the request to the warden having custody of the prisoner; (4) the prisoner must cause the request to be delivered to the prosecutor in the receiving state and to the appropriate court of that same state; (5) the prisoner s request must be sent to the receiving state s prosecutor and court by registered or certified mail, return receipt requested; (6) the prisoner s request must be accompanied by a certificate of the out-ofstate official having custody of the prisoner; and (7) the certificate of the out-of-state official must include certain specified information, i.e., term of imprisonment, time served, time remaining to be served, good time credit earned, date of 10

11 parole eligibility and any parole agency decisions regarding the prisoner. State v. Galvez, 214 Ariz. 154, 157, 17, 150 P.3d 241, 244 (App. 2006) (emphases added). Procedurally, the prisoner forwards the written notice and request for final disposition to an appropriate prison official where he is incarcerated, who shall promptly forward it together with the certificate to the prosecutor and court in the receiving state by registered or certified mail, return receipt requested. State v. Almly, 216 Ariz. 41, 52, 3, 162 P.3d 680, 681 (App. 2007) (citing A.R.S , Art. III(a)). 24 Although strict compliance with the IAD is not required, substantial compliance is necessary. Galvez, 214 Ariz. at 157, 18, 150 P.3d at 244 (citation omitted). The burden is on Mark to demonstrate that he substantially complied. Id. Until and unless there is substantial compliance, the time limits prescribed in Rule 8.3 are not triggered. Id. at 158, 27, 150 P.3d at 245. Substantial compliance generally means that the information provided has satisfied the purpose of the relevant statute. Id. at 157, 19, 150 P.3d at 244 (citation omitted). Because the prisoner and the sending state have better access to the information regarding the prisoner s confinement than the receiving state, the IAD places the burden on the prisoner and the sending state to provide specifically 11

12 enumerated information to the receiving state. Thereby, the IAD protects the receiving state from having to investigate the prisoner s out-of-state confinement. Id. at 157, 20; see also State ex rel. Berning v. Davis, 191 Ariz. 189, , 953 P.2d 933, (App. 1997). 25 From January 2002 to July 2007, Mark purported several times to seek disposition of the pending aggravated DUI charges. But none of these attempts substantially complied with the requirements of Article III of the IAD. Mark s initial requests deviated from Article III s requirements in several respects. First, and perhaps most importantly, Mark did not cause the request to be delivered to the prosecutor. Although his second request contained language suggesting that one copy was sent to the attorney for the government, this claim is not substantiated by the record. Further, the record does not indicate that the requests were accompanied by a certificate of the official having custody of Mark, stating the term of imprisonment, time already served, time remaining on his sentence, the amount of good time earned and time of parole eligibility. 26 Although a request might substantially comply with Article III without a certificate from the imprisoning official, the material information that would ordinarily be contained therein must be supplied to the receiving state. See State v. Burrus, 151 Ariz. 572, , 729 P.2d 926, (App. 1986) 12

13 (finding substantial compliance when a letter contained much of the required information even though the prisoner did not fill out government-prescribed forms). Had such information been given here, much of the confusion regarding Mark s whereabouts would have been avoided. Because Mark failed to adhere to the requirements of the IAD in these critical respects, there was no substantial compliance. See Galvez, 214 Ariz. at 157, 22, 150 P.3d at 244 (holding that there is no substantial compliance when a prisoner fails to provide the request for final disposition to the official having custody of the prisoner). Accordingly, the time limits provided for in Rule 8.3 were not triggered by these attempted requests. (3) Mark s Counsel s Request Did Not Substantially Comply With the IAD 27 Mark s counsel s August 27, 2007 motion for final disposition informed both the court and the county attorney that Mark was being held at CCC-CADC, PO Box 6300, Florence, AZ Upon receipt of Mark s counsel s request for final disposition, the court ordered ADOC to release Mark Walter Marcus, aka: Marcus Walter Mark to the custody of the MCSO. That order was returned as undeliverable. 28 As stated above, much of the confusion regarding Mark s whereabouts may have been alleviated had the motion included information regarding Mark s term of imprisonment and 13

14 the agency responsible for Mark s custody, as required by Article III. It was Mark s burden to provide the receiving state with the necessary information to enable it to take action. Mark did not meet that burden here. Therefore, the time limits of Rule 8.3 were not triggered by counsel s request. 29 It was not until December 21, 2007 that Mark substantially complied with the requirements of Article III when, through his counsel, he filed a motion to quash the warrant for his arrest. For the first time, Mark informed the court and the county attorney that he was currently in federal custody. That information, coupled with Mark s address, enabled the prosecutor to take action as required by law and petition for a writ of habeas corpus to obtain custody of Mark. Accordingly, the Rule 8.3 time limits were triggered, and the prosecutor had 90 days to take action to obtain the custody of Mark. Mark appeared on March 10, Because the prosecutor acted to secure Mark s appearance within the 90 day limitations period as prescribed in Rule 8.3(a), we conclude that Mark s speedy trial rights were not violated pursuant to Rule 8. We now turn our examination to whether Mark s speedy trial rights were violated under the Constitution. 14

15 II. Speedy Trial Rights Under the United States Constitution 31 Under the less protective speedy trial standard guaranteed by the United States Constitution as announced in Barker v. Wingo, 407 U.S. 514 (1972), Mark s argument likewise fails. To determine whether a defendant s speedy trial rights have been violated, Barker requires the court to balance the following factors: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant properly asserted his right to speedy trial; and (4) whether he suffered prejudice as a result of the delay. Id. at 530. None of these factors is controlling, but while the length of delay is the least important, the most important is the prejudicial effect. Olson, 146 Ariz. at 339, 705 P.2d at 1390 (citation omitted). 32 That the length of the delay was extraordinary is not disputed. 6 As to the remaining factors, however, the State and Mark vigorously disagree. 33 With respect to the second factor of the Barker test, the State contends that the fault for the delay is attributable to Mark because he did not effectively assert his rights to a 6 We note that both parties incorrectly agree that the delay between the indictment and the arraignment was 7 1/2 years. The record indicates that Mark was indicted on June 30, 2000 and was arraigned on January 29, 2007, which is approximately 6 1/2 years. 15

16 speedy trial while he was incarcerated in federal prison. 7 In contrast, Mark points out that the State failed to use Mark s proper name on its indictment, and that it made no investigation into Mark s whereabouts after service of the summons was found insufficient because Marjorie Mark, not Mark, signed it. Because we find merit in both arguments, this factor does not weigh heavily in determining whether Mark s speedy trial rights were violated. We therefore focus our examination on the final two factors. 34 As indicated in our discussion of Rule 8, supra, Mark did not properly assert his right to speedy trial. Unlike the defendant in Doggett v. United States, 505 U.S. 647 (1992), who was unaware of the indictment, the record here confirms Mark s acute and continual awareness of pending charges against him. As early as 2002, Mark began filing motions to quash all warrants against him. Mark urges us to credit his attempts to have the charges expeditiously brought against him as evidence that he actively asserted his speedy trial rights. But to do so would effectively nullify Rule 8 s requirement that he substantially comply with the IAD. Moreover, equating a defendant s mere attempts to avail himself of his speedy trial rights with a proper affirmative assertion of his Sixth 7 Mark also failed to appear at his pretrial conference following his arraignment. 16

17 Amendment rights would serve to encourage a type of gamesmanship in which the defendant could vigorously, yet ineffectively, assert his speedy trial rights until such time as he effectively manufactures a violation of those rights. Therefore, we conclude that Mark did not properly avail himself of his speedy trial rights as the Sixth Amendment requires. 35 As to the final Barker factor, prejudice, we recognize that generally, a delay beyond a year is presumptively prejudicial. Doggett, 505 U.S. at 652 n.1. But when, as here, the defendant s incarceration in another state spans roughly the same time period as the delay, any prejudice caused by the delay is diminished. Prejudice... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. Barker, 407 U.S. at 532. The United States Supreme Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Id. The fact that Mark was incarcerated during almost all of the period of delay attenuates the Sixth Amendment concerns raised in Doggett and Barker relating to a defendant s unencumbered liberty. If Mark wished to avoid prejudice, the IAD provided him a clear path to relief. Therefore, even if there was prejudice, the prejudice was of Mark s own making. We conclude that because 17

18 Mark failed to substantially comply with the IAD, he cannot now be heard to complain that the process was too slow and that this caused him prejudice. Accordingly, even under the Barker test, Mark s federal constitutional right to a speedy trial was not violated. CONCLUSION 36 Because Mark did not substantially comply with the requirements of Article III of the IAD until December 21, 2007, we conclude that the prosecutor took timely action to secure his presence pursuant to Rule 8.3. Likewise, Mark s rights to a speedy trial were not violated under the United States Constitution. We therefore reverse the trial court s dismissal with prejudice and remand for further proceedings. PETER B. SWANN, Presiding Judge CONCURRING: JOHN C. GEMMILL, Judge DIANE M. JOHNSEN, Judge 18