author: SUMMERS, J.

text:
    2003 OK 98
    The PENTAGON ACADEMY, INC., Plaintiff/Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Defendant/Appellee.
    No. 98,384.
    Supreme Court of Oklahoma.
    Nov. 25, 2003.

      Gentner F. Drummond, Will K. Wright, Jr., The Drummond Law Firm, Tulsa, OK, for Plaintiff/Appellant.
    J. Douglas Mann, Eric D. Wade, Rosen-stein, Fist & Ringold, Tulsa, OK, for Defendant/Appellee.
   SUMMERS, J.

1 The question is whether an unsuceessful charter school applicant may compel the School District to submit to binding arbitration on the application. Title 70 0.8.2001, § 3-134(F) of the Charter Schools Act provides that when an application to establish a charter school is rejected by a board of education, the unsuccessful applicant "may proceed to mediation or binding arbitration or both mediation and binding arbitration as provided in the Dispute Resolution Act [12 0.8. § , 180let seq.] and the rules promulgated pursuant thereto." The issue before us is whether the district court erred when it refused to apply this statutory provision to grant Pentagon Academy's request for binding arbitration after the board of education of the Tulsa School District rejected its application for approval as a charter school. We answer the question in the negative, and affirm the trial court's grant of summary judgment to the Tulsa School District. It is Pentagon Academy's appeal which is retained before us for review.

1 2 In its entirety, § 3-184(F) provides:

F. If a board of education rejects the revised application for a charter school, the applicant may proceed to mediation or binding arbitration or both mediation and binding arbitration as provided in the Dispute Resolution Act [12 O.S., § 1801 et seq.] and the rules promulgated pursuant thereto. The applicant shall contact the early settlement program for the county in which the charter school would be located. If the parties proceed to binding arbitration, a panel of three arbitrators shall be appointed by the director of the early settlement program handling the dispute. The board of education shall pay the cost for any mediation or arbitration requested pursuant to this section. (Emphasis provided.)

13 However, the Dispute Resolution Act, 12 0.8.2001, § 1801, et seq., which 70 O.S8., § 8-134(F) incorporates by reference, does not authorize binding arbitration, nor have any rules for arbitration been promulgated pursuant thereto. That Act provides solely for the establishment of programs for mediation services, and mandates procedures, rules and regulations for only mediation services. With one insignificant exception , the provisions of the Dispute Resolution Act make no mention of arbitration. We do not set forth the whole Dispute Resolution Act here. It is sufficient to note that the Act does not provide for binding arbitration as a means of resolving disputes, nor does it establish rules and procedures for its implementation. Its title reads:

An Act relating to civil procedure; establishing a Dispute Resolution Act; stating purpose; providing short title; defining terms; authorizing establishment of programs to provide mediation services; establishing procedures; requiring certain rules and regulations in supplying mediation services; providing for confidentiality; limiting lability in certain circumstances; providing for tolling of statute of limitations under certain conditions; providing for codification; providing an operative date; and declaring an emergency. Laws 1988, c. 78. (Emphasis supplied.)

14 To that end, the Dispute Resolution Act provides that rules for the effectuation of the purposes of the Act shall be promulgated by the Administrative Director of the Courts, with the approval of the Supreme Court of Oklahoma. Title 12 0.98.2001, § 1803(A) provides:

Any county, municipality, accredited law school or agency of this state is hereby authorized to establish programs for the purpose of providing mediation services pursuant to the provisions of the Dispute Resolution Act, ... to be administered and supervised under the direction of the Administrative Director of the Courts. The Administrative Director shall promulgate rules and regulations, subject to the approval of the Supreme Court of the State of Oklahoma, to effectuate the purposes of the Dispute Resolution Act.

5 Pursuant to the statute, rules and procedures for establishing and regulating mediation were promulgated by the Administrative Director and were initially adopted by the Oklahoma Supreme Court in 1986. See, 12 0.8. Ch. 87, App. Rules and Procedures for the Dispute Resolution Act, and Appendix A through Appendix D.

T 6 The Supreme Court, however, has never adopted rules and regulations governing arbitration. At trial the parties showed that a draft of rules and regulations regarding binding arbitration had been promulgated by the Administrative Director of the Courts, but that those rules and regulations were never approved by the Supreme Court, and were later withdrawn by the Director.

17 This summary judgment review calls for statutory interpretation, and presents only questions of law which stand before us for de novo review. The grant of summary judgment, ultimately a legal determination as to whether a party is entitled to judgment as a matter of law, is reviewed by appellate courts by a de novo standard exercising plenary, independent and non-deferential authority. Cranford v. Bartlett, 2001 OK 47, 25 P.3d 918. Additionally, statutory interpretation is reviewed de novo. Fraternal Order of Police v. Ardmore, 2002 OK 19, 44 P.3d 569.

18 The material facts of this matter were not in dispute. The Pentagon Academy brought this action for declaratory judgment seeking to have the trial court determine its right to binding arbitration under the Charter School Act, 70 0.8.2001, §§ 3-180, et seq., and issue its order compelling the school district to participate in binding arbitration concerning its denial of plaintiff's charter school application. The parties jointly stipulated below to the following facts as conclusive of the controversy between them.

T9 On February 1, 2001 the board of education of the Tulsa School District received the Pentagon Academy's application for approval as a charter school, and the board voted to tentatively approve the application pending completion of the application. The completed application was received on February 1, 2002 but was rejected by the School District, which sent timely notice to the Pentagon Academy of the application's rejection and the reasons therefor. The Academy then submitted a revised application for approval as a charter school and on June 18, 2002, the Tulsa School District also rejected the revised application. Based on the above provisions of 70 0.8.2001, § 3-134(F), the Pentagon Academy requested that the Tulsa School District participate in binding arbitration. The School District declined to do so, but did offer to participate with the Pentagon Academy in non-binding mediation. The Pentagon Academy refused to participate in mediation and filed this declaratory judgment action.

T10 The Pentagon Academy contends that the words of 70 0.8. § 8-134(F) authorize the parties to participate in mediation or binding arbitration, and also grant the right to decide whether to pursue binding arbitration exclusively to it, the unsuccessful applicant. Pentagon Academy argues that since the statute gave defendant Tulsa School District no choice as to whether to participate in binding arbitration, its refusal to so do was arbitrary, capricious and contrary to law.

{11 Pentagon Academy further argues that the fact that the Dispute Resolution Act does not provide for arbitration and the fact the Supreme Court has not approved rules and regulations governing arbitration pursuant to that act are irrelevant to the expressed intent of the legislature to allow the charter applicant to choose binding arbitration. It maintains that because the statute provides that the director of the early settlement program "shall" appoint a panel of three arbitrators and the board of education "shall" pay the costs, the panel should be allowed to select its own rules to govern the arbitration so the applicant will not be penalized by the silence of the Dispute Resolution Act or the absence of rules approved by the Supreme Court.

{12 Pentagon Academy argues that the only reasonable construction of the statute is that the legislature intended the unsuccessful applicant to have the option to compel arbitration, and that in the face of the legislative failing, or ineptness-the Dispute Resolution Act's silence on arbitration procedures and rules-the court should simply construe the language of 70 0.8.2001, § 38-184 to give the provision its intended and obvious purpose.

{13 The School District contends that binding arbitration under the Charter School Act is legally impossible. It points out that the statute's direction that the applicant "may proceed to ... binding arbitration as provided in the Dispute Resolution Act and the rules promulgated pursuant thereto" is powerless to effect that purpose, since the Dispute Resolution Act does not authorize binding arbitration, and rules and regulations governing arbitration have never been adopted by the Supreme Court of Oklahoma. The School District contends that any order issued by the trial court which compelled its participation in binding arbitration procedures pursuant to the purported mandate of the Charter School Act, would therefore be both a legal impossibility to enforce and an unconstitutional exercise of power.

1 14 Additionally, School District asserts it would be deprived of due process of law if the provisions of the Charter School Act purporting to grant binding arbitration were enforced, inasmuch as the statutes do not provide for fair and constitutionally adequate arbitration procedures, and do not provide for any judicial review of the process or the arbitrator's decision. The District argues that this statutory scheme which places final and non-reviewable power with arbitrators constitutes an unconstitutional delegation of judicial power. The District also contends that the Act violates the separation of powers doctrine because the legislature has usurped the constitutional powers of the executive branch to supervise the policies, administration and state funding of public schools and has delegated that power to a panel of arbitrators.

1 15 In addition to these assertions of specific constitutional infirmities, the School District also argues that the Charter Schools Act is unconstitutional in its entirety because its highly restrictive population and average daily membership requirements set forth in 70 0.8. §§ 3-132(A) and 8-188, are an arbitrary and capricious limitation on the Act's application to certain school districts, and constitute a local or special law regulating the affairs of school districts in violation of the Oklahoma Constitution, Article V, Section 46.

{16 Both parties sought summary judgment. The district court denied plaintiff Pentagon Academy's motion, and granted summary judgment to defendant School District. In reaching its decision the court agreed with the School District that while binding arbitration is mentioned in § 3-134(F) of the Charter Schools Act, it was legally impossible for it to take place in light of the absence of rules and regulations governing the procedure approved by the Oklahoma Supreme Court required to be provided by the Dispute Resolution Act. Having determined the matter on this statutory ground, the trial court found it unnecessary to address the constitutional challenges to the Charter School Act which had been raised by School District.

17 We agree with trial court's ruling on both motions. The trial court correctly ruled that arbitration could not proceed in the absence of rules required by the interplay of the statutes for the implementation and control of binding arbitration. The Charter School Act incorporates the Dispute Resolution Act by reference, and mandates that binding arbitration proceed "as provided by the Dispute Resolution Act and the rules promulgated thereto". We are not at liberty to ignore these express requirements of the acts or to create alternative requirements of our own. Those requirements are an essential part of the Charter School Act. A "reference statute" is a statute which refers to other statutes, and by reference adopts them wholly or partially and makes them applicable to the subject of the legislation. See, Dabney v. Hooker, 1926 OK 751, 249 P. 381; Ex parte McMahan, 1951 OK CR 94, 287 P.2d 462.

18 The silence of the Dispute Resolution Act on the subject of provisions governing binding arbitration leaves no room for this Court to add language and change the meaning of the statutes. The absence of those provisions does not present a mere ambiguity as was argued by Pentagon Academy. The Dispute Resolution Act clearly authorizes only mediation, and provides procedures only for mediation. Relying on its provisions as authority for compulsory binding arbitration is, as was determined by the trial court, legally impossible.

%19 The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute. Courts will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. When the language of a statute is plain and unambiguous, no occasion exists for further judicial inquiry or for the application of rules of construction, and the statute will be accorded meaning as expressed by the language employed. It is not the function of the courts to add new provisions which the legislature chose to withhold. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, 803; City of Bethany v. Hill, 1973 OK 49, 509 P.2d 1864. Where the meaning of a statute is clear and unmistakable, there is no room for construction, and courts may not search for an interpretive device to fabricate a different meaning. Anson Corp. v. Hill, 1992 OK 188, 841 P.2d 583.

1 20 The trial court was also correct that it was not necessary to address hypothetical constitutional problems which might result from allowing compulsory binding arbitration to go forward in the absence of an existing framework of rules governing the procedure and its review. It is enough for the disposition of this matter that the statutory authority and those rules and procedures expressly mandated by the incorporated statute to implement binding arbitration are not present.

121 School District's motion to dismiss portions of the appeal, which was deferred for consideration until disposition, is denied. ;n The judgment of the trial court is affirmed.

122 WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, JJ., Concur.

123 OPALA, V.C.J.,

concurring in result. "I concur in the court's disposition but not jg pronouncement."

       . Rule 2, Part D of the Rules and Procedure for Dispute Resolution Act provides the definition of "Center" as: "A community-based facility which provides dispute resolution service consisting of: mediation, conciliation, arbitration, facilitation or other forms and techniques of dispute resolution."


source: Caselaw Access Project

author: JACKSON, Presiding Judge:

license: Public Domain

text:
    2003 UT App 441
    WELLS FARGO BANK, N.A., formerly known as First Interstate Bank of Utah, as personal representative of the Estate of Franklin J. Bradshaw and as representative and attorney-in-fact of the selling shareholders of Bradshaw Auto Parts Company of Mt. Pleasant, Inc., Bradshaw Automotive Parts Company Incorporated, Bradshaw Auto Parts Whse., and Bradshaw Auto Parts Company, Plaintiff and Appellant, v. TEMPLE VIEW INVESTMENTS, Greg Stuart, William D'Evelyn, and Richard C. Bennion, Defendants and Appellees.
    No. 20030050-CA.
    Court of Appeals of Utah.
    Dec. 26, 2003.
    Rehearing Denied Jan. 21, 2004.
    John A. Snow and Bradley M. Strassberg, Van Cott Bagley Cornwall & McCarthy, Salt Lake City, for Appellant.
    Michael L. Deamer, Randle Deamer & Lee PC, Salt Lake City, for Appellees.
    Before Judges JACKSON, DAVIS, and THORNE.
   OPINION

JACKSON, Presiding Judge:

T1 Appellant Wells Fargo Bank (Wells Fargo) appeals the order of the district court granting summary judgment to Appellees Temple View Investments, and its principals Greg Stuart (Stuart), Willliam D'Evelyn (D'Evelyn), and Richard Bennion (Bennion), collectively referred to herein as Temple View. We affirm.

BACKGROUND

12 Wells Fargo brought an action for breach of contract against Temple View on May 15, 2002. The action is based on a promissory note dated November 1, 1985, in the principal amount of $339,232.80, executed by Temple View. In 1991, Wells Fargo filed an action to collect an unrelated debt from a third party, who was also the holder of the 1985 Temple View note. In late 1992 or early 1998, Wells Fargo's former counsel, John Anderson, met with two of Temple View's principals, Stuart and D'Evelyn. He informed them of Wells Fargo's intention to acquire the note from the holder. He also informed them that if the note was in default, Wells Fargo would consider bringing legal action against Temple View and its principals. Temple View's principals denied that they personally guaranteed the note. Anderson asked Stuart and D'Evelyn to cooperate in determining the principal amount owed on the note, as both parties' records regarding payments and distributions of payments were unclear. In the spring of 1998, Stuart, D'Evelyn, and Bennion provided Anderson with personal financial statements in support of their efforts to resolve the question regarding the note.

1 3 The parties continued to correspond, in writing and in person, for the next several years. Anderson met with and corresponded with Temple View and its previous counsel on a number of occasions in order to resolve the matter. Anderson informed Temple View that Wells Fargo had not declared a default, that payments on the note should cease temporarily, and that no default would be declared until a proper accounting could take place. In a letter from its attorney, Thomas Rogan, written in August 1997 (the Rogan letter), Temple View indicated a desire to compromise on the matter. Ultimately, the parties could not agree on a resolution.

" 4 The note was due and payable, according to its express terms, on or before June 1, 1995. Wells Fargo filed suit against Temple View on May 15, 2002, six years and eleven months after the due date. Temple View filed a motion to dismiss the action because it was filed after expiration of the six-year statute of limitations provided by Utah Code Annotated section 70A-8-118 (2001) and Utah Code Annotated section 78-12-23 (2002). Wells Fargo opposed the motion with an affidavit from John Anderson (the Anderson affidavit), which attempted to introduce the Rogan letter into the record. Wells Fargo argued that the Rogan letter, which expressed a desire to resolve the matter, constituted an acknowledgment of the debt and thus renewed the obligation. Further, Wells Fargo argued that its failure to declare default unilaterally extended the date the note was due.

15 Temple View filed a motion to strike the Anderson affidavit on the grounds that the affidavit lacked foundation, consisted of hearsay, and otherwise consisted of inadmissible evidence under Utah Rule of Evidence 408, because it was an offer to settle a disputed matter. The district court ruled that the Rogan letter was not a reaffirmation of the debt and granted Temple View's motion for summary judgment based on the statute of limitations. Then, Wells Fargo filed a motion for a new trial. The district court denied that motion on the ground that Wells Fargo had not submitted anything new in the facts or the law. Wells Fargo appeals.

ISSUE AND STANDARD OF REVIEW

T6 Wells Fargo challenges the district court's conclusion as a matter of law that Wells Fargo's delay in declaring default did not extend the note's due date. Wells Fargo also challenges the district court's conclusion that, as a matter of law, Temple View did not acknowledge the debt represented by the note. We review a district court's conclusions of law for correctness, granting them no deference. See Schaerrer v. Stewart's Plaza Pharm., Inc., 2008 UT 48, ¶ 14, 79 P.3d 922.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). When reviewing a district court's [grant] of summary judgment, we grant no deference to the district court's legal conclusions and review them for correctness.
Id.

ANALYSIS

I. Extension of the Note's Due Date

17 Wells Fargo first challenges the district court's conclusion that the due date was not extended, thus tolling the statute of limitations. Wells Fargo argues that its own delay in declaring default unilaterally extended the note's due date. In support of this argument, Wells Fargo points to the note's own provision that contemplates the possibility of extending the due date. That provision states that "(tlhe makers and endorsers ... expressly agree that this note, or any payment thereunder, may be extended from time to time without in any way affecting the liability of the makers and endorsers thereof." Beyond this contract provision, which does not directly permit unilateral extensions at the option of the. holder, Wells Fargo's brief contains neither legal authority nor legal analysis supporting the proposition that a holder's failure to declare default extends a note's due date for purposes of determining when a breach occurred. All of the cases cited by Wells Fargo deal with mutual modification of note provisions and are inapplicable here. Thus, Wells Fargo's unilateral extension argument gives us no legal basis upon which to reverse the district court's ruling. Where, as here, "[plroof of mutual assent is absent," we will not give legal force to a party's "attempt to unilaterally alter" the terms of the note. Western Sur. Co. v. Murphy, 754 P.2d 1287, 1289 (Utah Ct.App.1988). Thus, we conclude "the trial court correctly ruled that the [purported extension] had no force or effect." Id.

II. Acknowledgment of Debt on the Note

T8 Next, Wells Fargo argues that Temple View made an enforceable acknowledgment of the debt on the note. The Anderson affidavit avers that Anderson had met with and corresponded with Temple View and its previous counsel on a number of occasions over a period of years in order to attempt good-faith settlement. Further, Anderson's affidavit avers that he informed Temple View that Wells Fargo had not declared a default, that payments on the note should cease temporarily, and that no default would be declared until a proper accounting could take place. Finally, the affidavit states that Temple View indicated a desire to compromise the dispute by the Rogan letter'

The Rogan letter stated,

[als we have discussed recently, this may be a good time to resolve the long outstanding matter of liability of the November 1, 1985 promissory note from Temple View Investment. As you know, I represent Temple View Investment ... principals Stuart, D'Evelyn and Bennion. The accruals on the note exceed $390,000.00.

Wells Fargo argues "Rogan's letter clearly acknowledges an existing liability.... Rogan went further, and noted an amount owed under the note in question."

1 9 Utah Code Annotated section 78-12-44 (2002) governs this argument:

In any case founded on contract, when ... an acknowledgment of an existing liability, debt or claim ... shall have been made, an action may be brought within the time prescribed for the same after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.

The Utah Supreme Court has interpreted section 78-12-44 to mean that in order to file an action outside the statute of limitations, based on a new acknowledgment, the written acknowledgment must be clear, distinct, direct, unqualified, and intentional:

In Salt Lake Transfer Co. v. Shurtliff, 83 Utah 488, 489, 30 P.2d 733, 736 [ (1934),] Mr. Justice Folland, speaking for this court, noted ... the rule that "nothing short of a distinct, direct, unqualified, and intentional admission of a present, subsisting debt on which a party is Hable will be sufficient to take the obligation out of the statute and start it running anew." "The acknowledgment necessary to start the statute [running] anew must be more than a hint, a reference, or a discussion of an old debt; it must amount to a clear recognition of the claim and lability as presently existing."

Beck v. Dutchman Coalition Mines Co., 2 Utah 2d 104, 269 P.2d 867, 869-70 (1954) (citation omitted).

T10 We are not persuaded that the Rogan letter clearly acknowledges any existing liability. Indeed, the subject of the language Wells Fargo quotes is "the long outstanding matter of liability," which indicates a dispute regarding whether Temple View was liable to pay the note. In fact, the next paragraph in the Rogan letter, omitted in Anderson's affidavit and not quoted by Wells Fargo on appeal, states, "[ylou may not ... be aware of certain facts which give rise to a defense against liability based on fraud [in the inducement]." The remaining five paragraphs of the letter outline the basis of a fraud in the inducement defense and propose a settlement, given "the costs and uncertainties of litigation." Taken as a whole, the Rogan letter does not contain " 'a distinct, direct, unqualified, and intentional admission of a present, subsisting debt'" Beck, 269 P.2d at 870 (citation omitted).

CONCLUSION

T11 Wells Fargo has made no legitimate legal argument that its own delay in declaring default resulted in a unilateral extension of the note's due date. Further, Temple View's purported acknowledgment of debt

under the note falls far short of the legal standard in Utah for an enforceable acknowledgment. Thus, Wells Fargo's action, brought more than six years after its cause of action accrued, was barred by the statute of limitations. Accordingly, the district court correctly entered summary judgment dismissing Wells Fargo's action. We affirm.

[ 12 WE CONCUR: JAMES Z. DAVIS, Judge, and WILLIAM A. THORNE JR., Judge.

      . Wells Fargo also challenges the district court's denial of its motion for a new trial. We decline to address this challenge because Wells Fargo has not presented us with an adequate record of the district court's ruling denying the motion for new trial. See Gorostieta v. Parkinson, 2000 UT 99,1 34, 17 P.3d 1110 ("[Thhe burden is upon the appellant to provide an adequate record for review, and without an adequate record, we must assume the regularity of the proceedings below."). The most we can find in the record with respect to this ruling is the district court's order that denied Wells Fargo's motion for new trial "'for the reasons stated in open court." Wells Fargo has not provided a transcript of the hearing wherein the district court explained its decision. Thus, "we must assume the regularity of the proceedings below." Id.

      . On appeal, Wells Fargo attempts to recharac-terize its unilateral extension argument, which it made below, as a mutual modification argument. Nothing in the record, however, indicates that Wells Fargo argued below that the parties mutually assented to a modification of the note's due date. Thus, the modification argument was not preserved for our review, and we will not address it. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, 114, ¶ 48 P.3d 968 ("[In order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.").

      . Temple View argues the phrase "without in any way affecting the liability of the makers and endorsers thereof" renders void any attempt to modify the due date to reach beyond the statuie of limitations, since such a modification would clearly "affect[ ] the liability of the makers and endorsers." However, we believe the phrase could be read to mean the exact opposite, that a mutual agreement to modify the due date will not otherwise affect the parties' liabilities. However, for this to be a determinative issue, Wells Fargo must first demonstrate the due date was extended. Because we determine the district court correctly ruled that the due date was not extended, this issue is moot.

      . See Utah R.App. P. 24(a)(9) (requiring appellants' briefs to set forth legal authority for their challenges); Burns v. Summerhays, 927 P.2d 197, 199 (Utah Ct.App.1996) ("[TJo permit meaningful appellate review, briefs must comply with the briefing requirements sufficiently to 'enable us to understand ... why, under applicable authorities, [alleged] errors are material ones necessitating reversal. ...'" (Emphasis added.)).

      . Wells Fargo challenges the district court's ruling that the Anderson affidavit and the Rogan letter are inadmissible. We decline to address this challenge, however, because we conclude that the statute of limitations bars Wells Fargo's suit, even with the affidavit and letter. Thus, the district court's evidentiary rulings, even if incorrect, are at most harmless error. See Hall v. NACM Intermountain, Inc., 1999 UT 97, ¶ 21, 988 P.2d 942 ("We do not reverse the trial court for committing harmless error."). Accordingly, our opinion analyzes the statute of limitations challenge, assuming without deciding the admissibility of the Anderson affidavit and the Rogan letter.


author: KITE, Justice. GOLDEN, Justice,

text:
    2003 WY 169
    Janvirgo Thunor Akihoka ODHINN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-281.
    Supreme Court of Wyoming.
    Dec. 30, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; and Donna D. Domonkos, Appellate Counsel.
    Representing Appeliee: H.M. Hoke Mac-Millan, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] Janvirgo Thunor Akihoka Odhinn appeals a district court's order denying his motion to dismiss eriminal charges filed against him in Wyoming based upon alleged violations of the Interstate Agreement on Detainers (IAD). He claims his statutory and constitutional rights to a speedy trial were violated when he was not brought to trial within 180 days of the date Wyoming received notification of his request for final disposition of the charges. We hold Mr. Odhinn's right under the IAD to final disposition within 180 days was violated and reverse the district court's order.

ISSUES

[T2] Mr. Odhinn presents the following issues:

ISSUE I
Whether the State of Wyoming denied Appellant his right to speedy trial under Article III of the Interstate Agreement on Detainers (IAD)? ISSUE II
Whether the State of Wyoming denied Appellant his right to speedy trial as guaranteed by the 6th Amendment to the U.S. Constitution and by Article I, § 10 of the Wyoming Constitution by the failure of the Nebraska Detainer Administrator to promptly send Appellant's Interstate Agreement on Detainer (IAD) demand for a speedy trial to Wyoming and/or as a result of the inaction by the State of Wyoming under the Interstate Agreement on Detailers?

FACTS

[13] In 1997, Mr. Odhinn was sentenced to two terms of two to four years in the Nebraska Department of Corrections on two convictions for theft. He escaped from the Nebraska facility in 1998. In August of 1999, the county attorney's office in Albany County, Wyoming filed an information alleging that Mr. Odhinn committed two counts of larceny in Laramie, Wyoming. The Albany County cireuit court issued an arrest warrant and Mr. Odhinn was arrested in Utah on August 10, 1999. He was then extradited to Nebraska to complete his sentences on the theft charges and face prosecution for the escape.

[14] On May 18, 2000, the Albany County sheriff's office notified Nebraska that Mr. Odhinn was wanted in Wyoming on larceny charges and requested a detainer. Mr. Odhinn was served with notice of the Wyoming charges on June 6, 2000. The notice informed him of his right to request final disposition of the Wyoming charges and be brought to trial in Wyoming within 180 days of delivery of his request to the Albany County prosecutor and court. That same day, Mr. Odhinn signed IAD Form II requesting final disposition of, and expressly waiving extradition with respect to, the Wyoming charges. At that time, Nebraska authorities did not advise Wyoming of Mr. Odhinn's request and waiver.

[1151 On June 20, 2000, Nebraska notified the Albany County sheriff's office that Mr. Odhinn was due to be discharged on July 16, 2000. Prior to his release, the Nebraska county court presented him with another waiver of extradition form on July 3, 2000, which he refused to sign. Neither the record nor the parties' briefs indicate why Mr. Odhinn was asked to sign a second waiver after having waived extradition just two weeks before by signing IAD Form II.

[T6] On July 10, 2000, officials in Nebraska informed Wyoming authorities that on July 5, 2000, Mr. Odhinn was sentenced to serve an additional one to two years in Nebraska on the escape charge and would not be available for release to Wyoming on July 16 after all. The record does not indicate and the parties offer no explanation as to why Mr. Odhinn was not available for release to Wyoming after being sentenced on the escape charge. From the record, it would appear that as of July 5, 2000, Mr. Odhinn had entered upon a term of imprisonment in Nebraska while charges upon which a detain-er had been filed were pending in Wyoming, the very cireumstances contemplated by the IAD for releasing him to Wyoming for disposition of the charges pending in this state.

[T7] Mr. Odhinn remained in custody in Nebraska and four months later, on November 16, 2000, filed a grievance, asserting a violation of his right to final disposition of the Wyoming charges within 180 days. Nebraska responded to Mr. Odhinn's grievance by stating that when he requested final disposition of the Wyoming charges in June of 2000, his expected release date in Nebraska was not until July making his request inappropriate; he refused to sign a waiver of extradition in July of 2000, necessitating procurement of a warrant signed by the governor of Nebraska; and he was not sentenced on the escape charge in Nebraska until July of 2000, preventing trial in Wyoming at that time. By letter dated November 17, 2000, Nebraska advised the Albany County attorney of Mr. Odhinn's June request for final disposition of the Wyoming charges. The Albany County prosecutor received the letter on November 27, 2000, nearly six months after Mr. Odhinn's request. This letter was the first notice Wyoming had that Mr. Odhinn had formally requested speedy disposition of the Wyoming charges pursuant to the IAD.

[T8] For the next several months, Mr. Odhinn remained incarcerated in Nebraska. On April 11, 2001, Nebraska advised Wyoming that Mr. Odhinn was scheduled to be released on May 16, 2001, but was refusing to sign a waiver of extradition to Wyoming. Despite Mr. Odhinn's June 6, 2000 waiver, Nebraska further advised that Wyoming would need to obtain a warrant from Nebraska's governor in order to secure his release.

[19] On May 15, 2001, Nebraska released Mr. Odhinn, but he was immediately taken into custody by the Lancaster County, Nebraska sheriff's office until Wyoming could obtain a governor's warrant. By letter to the Albany County circuit court dated June 3, 2001, Mr. Odhinn again requested dismissal of the Wyoming charges on the basis of speedy trial violations under the IAD and the Wyoming and United States Constitutions. In the letter, he specifically referenced his recent refusal to sign a waiver of extradition form, stating that his earlier signature on IAD Form II constituted a direct waiver of extradition to Wyoming making any additional waiver unnecessary.

[T10] Meanwhile, despite Mr. Odbinn's letter stating he had already waived extradition, Wyoming authorities proceeded with obtaining a governor's warrant for his release. The governor of Nebraska signed the warrant on June 26, 2001, and sent it on to the Lancaster County, Nebraska sheriffs office where it was received on June 29, 2001. Although no longer serving any sentence in Nebraska, Mr. Odhinn remained in custody in the Lancaster County jail throughout this time. At some point that is not identified by the parties and does not appear in the record, Mr. Odhinn filed a petition for writ of habeas corpus in the Lancaster County district court in which he again asserted a violation of his right to speedy trial in Wyoming. The district court held a hearing on the motion on July 24, 2001, and, by order dated July 26, 2001, denied the petition, holding that the Nebraska courts had no jurisdiction to address whether Mr. Odhinn's speedy trial right was violated in Wyoming. The district court ordered the Lancaster County sheriff's office to deliver Mr. Odhinn to Wyoming authorities.

[111] On August 2, 2001, fourteen months after Mr. Odhinn's request for final disposition of the Wyoming charges, sheriff's deputies from Albany County, Wyoming arrived in Nebraska to take Mr. Odhinn into custody and return him to Wyoming for trial. They were informed Mr. Odhinn was scheduled for a hearing the next day and could not be released. At the hearing, the Nebraska district court stayed its order of July 26 and ordered Nebraska authorities to hold Mr. Odhinn until disposition of his appeal from the denial of his petition for writ of habeas corpus. At some point, the Nebraska Supreme Court dismissed the appeal and, on December 26, 2001, Nebraska notified Wyoming that Mr. Odhinn was available for release to Wyoming authorities. Officers were dispatched to Nebraska on December 27, 2001, and returned to Wyoming with Mr. Odhinn the following day, more than a year and a half after he requested final disposition of the Wyoming charges.

[¥12] On March 15, 2002, Mr. Odhinn filed a motion in district court in Albany County seeking dismissal of the Wyoming charges on the ground that his speedy trial rights were violated. The district court held an evidentiary hearing on the motion and, on April 24, 2002, issued a decision letter in which it concluded no violation occurred be: cause: 1) the delay in bringing Mr. Odhinn to trial resulted from his refusal to sign the waiver of extradition in April of 2001 and filing a petition for writ of habeas corpus, and 2) Mr. Odhinn's "self-imposed delays" constituted good cause to continue the date for computing the. 180 days from November 27, 2000 to December 26, 2001. The district court entered an order denying the motion to dismiss on April 29, 2002. Mr. Odhinn entered a guilty plea conditioned upon his right to appeal the denial of his motion to dismiss and, on October 8, 2002, the district court sentenced him to not less than three nor more than nine years in the state penitentiary. Mr. Odhinn then appealed from the order denying his motion to dismiss.

STANDARD OF REVIEW

[118] To the extent 'the issue raised is a question of statutory interpretation, our review is de novo. Wyodak Resources Development Corporation v. Wyoming Department of Revenue, 2002 WY 181, ¶ 9, 60 P.3d 129, ¶ 9 (Wyo.2002). When a matter has been the subject of a bench trial (or evidentiary hearing) before the district court, we review the factual determinations under a clearly erroneous standard and the legal conclusions de novo. Union Pacific Railroad v. Trona Valley Federal Credit Union, 2002 WY 165, ¶ 7, 57 P.3d 1203, ¶ 7 (Wyo.2002).

[114] In construing statutes, our aim is to effectuate legislative intent. rector of Office of State Lands & Investments v. Merbanco, Inc., 2008 WY 78, 70 P.3d 241 (Wyo.2008). If the language is sufficiently clear, we do not resort to rules of construction. Id. We apply our general rule that we look to the ordinary and obvious meaning of a statute when the language is unambiguous. Id. We also construe a statute so as to give effect to all of its provisions. Id.

' [115] With regard to the IAD specifically, it is a federal law subject to federal construction. Knox v. Wyoming Department of Corrections State Penitentiary Warden, 34 F.3d 964, 966 (10th Cir.1994). United States Supreme Court interpretations of the IAD are thus binding on state courts. State v. Reed, 2008 Neb. LEXIS 145. The IAD is a remedial statute and should be liberally construed to achieve its purposes, including a speedy trial and the expeditious and orderly disposition of charges. Corbin v. Superior Court of the State of Arizona, 155 Ariz. 365, 746 P.2d 937, 939 (1987). However, it also has strict procedural requirements that must be followed. Id.

DISCUSSION

1. Right to speedy trial under the IAD

[116] Mr. Odhinn claims his right to speedy trial under the IAD was violated in that he was not brought to trial within 180 days of his request for final disposition as required. He asserts, and the state agrees, the time commenced to run on November 27, 2000, the date the Albany county prosecutor received his request for final disposition of the Wyoming charges. He claims Wyoming had until May 27, 2001, to bring him to trial. Given that he was not even returned to Wyoming until December 27, 2001, seven months after the asserted May 27, 2001 deadline, Mr. Odhinn claims the IAD was violated. The state argues the delay in bringing Mr. Odhinn to trial in Wyoming resulted from his actions in refusing to sign a waiver of extradition in April of 2001 and appealing the denial of his petition for writ of habeas corpus. The state asserts the district court properly held Mr. Odhinn was unable to stand trial in Wyoming during these periods and good cause existed for continuing the speedy trial date from November 27, 2000 to December 27, 2001.

[T17] The IAD is a compact among forty-eight states, the federal government and the District of Columbia creating uniform procedures for lodging and executing detainers. Alabama v. Bozeman, 583 U.S. 146, 148, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001). Wyoming and Nebraska are participating states. Wyoming's version of the IAD is promulgated in Wyo. Stat. Ann. § 7-15-101 (LexisNexis 20083). The Act provides a uniform procedure whereby persons who are serving prison sentences in one state, and who are also charged with crimes in another state, can be tried for the pending charges while they are serving their current sentences. Reed, 2003 Neb. LEXIS 145. It is intended to provide for expeditious delivery of the prisoner to the receiving State for trial prior to the termination of his sentence in the sending State and seeks to minimize the consequent interruption of the prisoner's ongoing prison term. Alabama, 533 U.S. at 148, 121 S.Ct. 2079. As stated in Article I of the Act:

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informa-tions or complaints, and difficulties in securing speedy trials of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement 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.

Section 7-15-101 (emphasis added). Because the IAD is a congressionally sanctioned interstate compact, it is a federal law subject to federal construction. Knox, 34 F.3d at 966. United States Supreme Court interpretations of the Agreement are thus binding on state courts. Reed, 2003 Neb. LEXIS at 646. The Act itself requires that it "shall be liberally construed so as to effectuate its purposes." Section 7-15-101, Art. IX.

[T18] The IAD contains two procedures for effectuating expeditious prosecution of charges filed in one state while a person is serving a sentence in another state. The first, contained in Article III, allows a prisoner against whom a detainer is lodged to initiate the process for disposition of charges outstanding in another state. The second, contained in Article IV, allows the authorities in the state where the charges are pending to initiate the process for returning a prisoner In this case, Mr. to that state for trial. Odhinn initiated the process for final disposition of the Wyoming charges by signing IAD Form II. Therefore, our review focuses on the Article III procedure.

[119] Article III of the Wyoming IAD provides in relevant part as follows:

Article III
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial at the next term of court after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for final disposition to be made of the indictment, information or complaint; provided that for good ecause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary and reasonable continuance. ...
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail.
(e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby .... The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purpose of this agreement....

Section 7-15-101 (emphasis added). We have previously noted that Article III of Wyoming's statutory provision is identical to the federal act in all but one respect-Article III(a) of the Wyoming statute requires final disposition "at the next term of court" after delivery of the defendant's request. Green v. State, 784 P.2d 1360, 1362 (Wyo.1989). The federal act and the statutes of all other party states require disposition "within 180 days" after delivery of the request. 18 U.S.C. Appx. Faced with this difference in Green, we applied the federal 180-day requirement. We do so again now in order to effectuate the Act's intent to provide uniform procedures and comport our decision with controlling federal law.

[120] As noted earlier in this opinion, the parties agreed the 180-day period began to run on November 27, 2000, the date Mr. Odhinn's request for final disposition of the Wyoming charges was delivered to authorities in Albany County. In Fex v. Michigan, 507 U.S. 43, 53, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993), the Court held the 180 days provided for in the IAD did not commence until the prisoner's request for final disposition was delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him. Thus, the parties are correct that November 27, 2000 is the appropriate date from which to begin the 180 days. One hundred and eighty days from November 27, 2000 is May 26, 2001. Given that Mr. Odhinn was not returned to Wyoming until December 26, 2001, seven months later, the charges against him clearly were not finally disposed of within 180 days. We must decide whether, under the facts presented, other provisions of the Act support the district court's determination that the IAD was not violated. Before focusing on that question, however, we address another concern touched on only briefly by Mr. Odhinn.

[T21] Article III(b) of the IAD requires the official having custody of the prisoner to "promptly" forward the prisoner's request for final disposition to the appropriate prosecuting official and court. Pursuant to this provision, Nebraska was required to promptly forward Mr. Odhinn's request to the Albany County court and prosecutor. The word "prompt" means "1: ready and quick to act as occasion demands: responding instantly 2: performed readily or immediately: given without delay or hesitation. (Websters New International Dictionary, 8d ed.1961)). Here, nearly six months passed after Mr. Odhinn signed the request and before Albany County officials received it. As we noted earlier, the reason for the lengthy delay is not apparent from the record or the parties' briefs. Although Nebraska claimed later in responding to Mr. Odhinn's grievance that his June 2000 request was not appropriate due to his July release date, he refused to sign a second waiver of extradition and he was not sentenced on the escape charge until July of 2000, none of these claims have any bearing on Nebraska's obligation to promptly forward Mr. Odhinn's request. They also provide no explanation as to why his request still was not forwarded in the months following July. Nebraska had an unequivocal obligation to promptly notify Albany County of Mr. Odhinn's request and for reasons largely left unexplained failed to do so.

[T22] One legal analyst has addressed the consequences of a custodian's failure to comply with the prompt notification provision as follows:

What are the consequences of a less than prompt delivery of the inmate's request for final disposition by the custodian to the prosecutor? Some courts have held that an inmate has only one obligation under the IAD-to advise the custodian in writing of the request for final disposition of the charges. If an inmate satisfies that requirement, he is entitled to the benefits of the IAD. After all, the inmate has no power of supervision over prison officials. If the delay does not meet the language of the IAD, the inmate is entitled to dismissal of the charge without having to show prejudice or misconduct if the initial trial date is not within 180 days of the request to the warden for final disposition. [People v. Wilson, 69 Cal.App.3d 631, 138 Cal.Rptr. 259, 262 (1977) ]
Why should the prosecuting officials of the charging state bear the brunt of another jurisdiction's failure to comply with IAD? The answer seems to be that, as between the prosecutor and the inmate, the prosecutor is "better situated than the inmate to see that the requirements of the law are met." [Wilson, 138 Cal.Rptr. at 262] A prisoner should not be penalized if the prison officials fail to carry out their duties under the IAD. [People v. Marshall, 170 Mich.App. 269, 428 N.W.2d 39, 42 (1989)]

L. Abramson, The Interstate Agreement on Detainers: Narrowing its Availability and Application, 21 New England Journal on Criminal and Civil Confinement 1 (1995), 22. Based upon this reasoning, the court in Wilson remanded the case for hearing to permit the state to show the reasonableness of a two-month delay between the prisoner's request and receipt of his request by the receiving state. Wilson, 138 Cal.Rptr. at 262. Other courts likewise have imposed the burden on the custodial official, rather than the inmate, to ensure compliance with the provision of the Act requiring prompt notification of the charging state. Pittman v. State, 301 A.2d 509 (Del.1973); People v. Esposito, 37 Misc.2d 386, 201 N.Y.S.2d 83 (1960); Rockmore v. State, 21 Ariz.App. 388, 519 P.2d 877 (1974); Burns v. State, 578 S.W.2d 650 (Tenn.1978).

[123] We are aware that other courts have held the custodial official's failure to comply with the prompt notification provision is not grounds for dismissing charges pending in another state. Welch v. State, 528 So.2d 1236 (Fla.Ct.App.1988); Parrott v. State, 206 Ga.App. 829, 427 S.E.2d 276 (1992); State v. Moore, 774 S.W.2d 590 (Tenn.1989). However, the effect of adopting the position of these courts would be to leave Mr. Odhinn in a "catch-22". His petition for writ of habeas corpus was denied in Nebraska on the ground that Nebraska courts had no jurisdiction to address whether Wyoming violated Mr. Odhinn's speedy trial right. A holding by Wyoming that Nebraska's failure to comply with the IAD does not affect the Wyoming charges is tantamount to holding we have no jurisdiction to address whether Nebraska violated his speedy trial right. This leaves Mr. Odhinn with no remedy for what we view as a clear failure on the part of officials to carry out the intent of the IAD. We conclude Mr. Odhinn's request was not promptly forwarded as required by the IAD. However, because the request was forwarded within the 180 day time period, we conclude that failure alone is insufficient to warrant dismissal of the Wyoming charges. We turn to the issue of whether Mr. Odhinn's rights were violated because the charges were not disposed of within 180 days.

[124] Article VI of the IAD provides:

Article VI
(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said 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.

Section 7-15-101 (emphasis added).

Pursuant to this provision, we must determine whether the time period was tolled because Mr. Odbhinn was "unable to stand trial" within the meaning of Article VI for any period after November 27, 2000.

[T25]) We have said periods in which a defendant is detained for trial in another jurisdiction toll the time for determining the number of days between his request and trial Green, 784 P.2d at 1363. Thus, in Green, we held a delay of 286 days between the defendant's request for final disposition and trial did not constitute a speedy trial violation given that he was unavailable for trial for 188 of those days while preparing for and standing trial in another jurisdiction. We also have held the time period is tolled when a defendant challenges for cause the judge assigned to the case and files multiple motions. Jones v. State, 813 P.2d 629, 632 (Wyo.1991). In Jones, we concluded the defendant was unable to stand trial and the time limit was tolled for almost three months as a result of the challenge for cause and other defense motions,. Other courts have likewise construed the phrase "unable to stand trial" in the IAD to include periods in which the defendant was facing pending charges in another state, Reed, 2003 Neb. LEXIS, 655; United States v. Roy, 830 F.2d 628, 633 (7th Cir.1987); Ohio v. Ferguson, 41 Ohio App.3d 306, 535 N.E.2d 708, 714 (1987); State v. Walton, 734 S.W.2d 502, 503 (Mo.1987); Iowa v. Wood, 241 N.W.2d 8, 14 (Iowa 1976), or defense motions were pending. United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir.1988); State v. Bernson, 106 Or.App. 252, 807 P.2d 309 (1991); State v. Millett, 272 N.J.Super. 68, 639 A.2d 352 (1994).

[126] In the present case, the district court concluded Mr. Odhinn was. unable to stand trial from April 11, 2001, when Nebraska officials asked him a third time to sign a waiver of extradition and he refused, until July 2, 2001, the date the governor's warrant allegedly necessitated by his refusal was received in Lancaster County where he was being held. The district court also concluded Mr. Odhinn was unable to stand trial from August 3, 2001, the date Nebraska refused to allow Wyoming authorities to take custody of Mr. Odhinn because of a pending hearing, to December 26, 2001, when Nebraska notified Albany County Mr. Odhinn's appeal had been dismissed by the Nebraska Supreme Court. We address these time periods sequentially.

[127] In ruling the Article III time period was tolled from April 11, 2001 to July 2, 2001, the district court relied on People v. Garner, 224 Cal.App.3d 1363, 274 Cal.Rptr. 298 (1990) and People v. Uplinger, 69 Ill.2d 181, 13 Ill.Dec. 27, 370 N.E.2d 1054 (1977). The latter decision is distinguishable and not helpful to our resolution of the issue in the present case. Unlike Mr. Odhinn, the defendant in Uplinger did not make a request for final disposition and thereby waive extradition as provided in Article III of the IAD. Therefore, his later refusal to sign a waiver of extradition "manifested the clear intent to prevent his return for trial in Illinois." There was no question, as there was in Mr. Odhinn's case, of the effect of a subsequent refusal to waive extradition on an earlier waiver. Id. at 1058. However, Garner, 224 Cal.App.3d 1868, 274 Cal.Rptr. 298, the other case relied on by the district court, is directly on point. Mr. Garner signed the IAD forms requesting final disposition of charges filed against him in San Diego, California and waiving extradition. Some months later, when he was available to stand trial on the California charges, Nevada authorities where he was being held presented him with a second waiver of extradition, which Mr. Garner refused to sign. The California court stated:

Here, the Nevada authorities allowed Garner to either reaffirm his request for disposition of the San Diego detainer or withdraw his request and waiver of extradition. Garner chose not to reaffirm his request and to withdraw his waiver of extradition. By refusing to reaffirm his waiver, Garner then made himself unavailable for transfer to San Diego. Garner, not California or Nevada officials, caused the delay. Under these cireumstances, the 180-day period was tolled until Garner consented to extradition and again sought final disposition of the San Diego charges.

Id. at 804.

[128] The district court was persuaded that Mr. Odhinn's refusal to sign the waiver in April of 2001 warranted tolling the 180 days. We disagree. Pursuant to the clear language of Article III(e), Mr. Odhinn's request for final disposition of the charges pending in Wyoming constituted a "waiver of extradition" and "consent to the production of his body" in court in Albany County, Wyoming. Onee Mr. Odhinn signed the form on June 2, 2000, no other waiver was necessary. To say that a prisoner can cireumvent his extradition to another state by refusing to sign a waiver after he has already waived extradition renders meaningless the clause in Article III(e) stating the request for final disposition is deemed to be a waiver. We think the better rule is stated in Franks v. Johnson, 401 F.Supp. 669, 672 (E.D.Mich. 1975), wherein the court held the prisoner's refusal to sign a waiver after requesting final disposition of charges was without effect because, under the IAD, the request is deemed to be a waiver. See also Tungate v. Thoms, 199 F.Supp.2d 608 (E.D.Ky.2002) where, after signing a request for final disposition, the defendant denied waiving extradition and the court upheld as effective and continuing the language of the request stating that it was "deemed to be a waiver of extradition."

[129] With regard to the waiver issue, we also reiterate that the prosecutor is in a better position than the prisoner to see that the requirements of the law are met. Here, when Mr. Odhinn was presented with the third waiver on April 11, 2001, officials in Wyoming and Nebraska already had the request for final disposition of the Wyoming charges signed by Mr. Odhinn on June 6, 2000. That document clearly states "I ... agree that this request shall be deemed to be my waiver of extradition with respect to the [Wyoming charges]." We simply are not willing to say that Mr. Odhinn's refusal to sign a form presented to him unnecessarily by Nebraska officials excuses the party states from complying with the 180 day time period. The IAD contains no provision requiring an inmate to "reaffirm" an already effective waiver and we are not willing to read such a requirement into the Act. The district court incorrectly held the 180-day period was tolled from April 11, 2001, until the governor's warrant was received cighty-three days later on July 2, 2001. Adding this period of time back into the calculation, the 180 days ended May 27, 2001, seven months before Mr. Odhinn was returned to Wyoming for trial.

[¥30] The dissent cites several cases for the proposition that the IAD's speedy trial provision did not apply to Mr. Odhinn on May 27, 2002, when the 180 days expired because he was released by Nebraska authorities on May 15, 2001. We note first that none of those cases involved a situation where, like here, despite his request for speedy disposition the defendant thereafter remained incarcerated in the sending state for another twelve months until his sentence was completed. Additionally, Mr. Odhinn was never really "released" because Nebraska authorities immediately took him into custody and held him for another seven months while Wyoming sought the governor's warrant and his habeas petition was resolved. Moreover, § 7-15-101(a) applies "whenever a person has entered upon a term of imprisonment ... and during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner." Mr. Odhinn had entered upon a term of imprisonment in Nebraska and during the continuance of that term an untried information was pending in Wyoming on the basis of which a detainer was lodged in Nebraska. Giving the statutory language its plain and ordinary meaning, we are persuaded the IAD applied even though Mr. Odhinn's sentence in Nebraska ended on May 15, 2001. Accord Commonwealth v. Davis, 2000 PA Super 217, 757 A.2d 959, 962 (2000).

[131] Having concluded that the 180 days expired on May 27, 2001, the question of whether the 180 days was tolled by Mr. Odhinn's later appeal of the denial of his petition for writ of habeas corpus is irrelevant. We are left to consider one final issue arising from the district court's order. Even under the district court's calculation, excluding the time periods from April 11, 2001 to July 2, 2001 and August 3, 2001 to December 26, 2001, Mr. Odhinn was not returned to Wyoming within 180 days. Faced with this result, the district court looked to the language of Article III stating: "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." Section - 15-101(a). Citing this provision, the district court held Mr. Odhinn's "self-imposed delays provide this Court the grounds with which to grant a necessary and reasonable continuance in this matter to December 26, 2001, the date that [he] was finally made available to the [Albany County sheriff's office] for transport to Wyoming." The district court thus brought final disposition of the charges against Mr. Odhinn back within the 180 days in which trial was to occur under the IAD.

[132] The difficulty with the district court's approach is that the self-imposed delays referred to as support for a retroactive continuance, i.e., Mr. Odhinn's refusal to sign a second waiver of extradition and filing a petition for writ of habeas corpus, were accounted for already by the district court in computing the IAD time period. That is, they were factored in as periods during which Mr. Odhinn was "unable to stand trial", thereby tolling the 180-day period. To factor them in a second time as a basis for granting a court initiated, retroactive continuance gives us pause.

[183] Another difficulty with the district court's approach is that it is contrary to the rule adopted by several courts that a continuance of a defendant's trial must be requested and granted before the 180 days expires. State v. Willoughby, 83 Hawai'i 496, 927 P.2d 1379, 1387 (Ct.App.1996) (calling this the "majority rule"); Dennett v. State, 19 Md. App. 376, 311 A.2d 437, 440 (Ct.Spec.App.1973); Commonwealth v. Fisher, 451 Pa. 102, 301 A.2d 605, 607 (1973); State v. Patterson, 273 S.C. 361, 256 S.E.2d 417, 418 (1979). The United States Supreme Court expressly declined to address this rule in Fex v. Michigan, 507 U.S. 48, fn. 5, 113 S.Ct. 1085, 122 L.Ed.2d 406, and there is at least one case upholding the grant of a continuance after expiration of the 180 days on the ground that the language of the IAD does not expressly state any continuance must be granted before the time expires. State v. Lippolis, 107 N.J.Super. 137, 257 A.2d 705, 711 (1970) (per curiam) (reversing on reasoning of dissent in Appellate Division). However, most courts that have addressed the issue have concluded continuances under the IAD must be granted prior to expiration of 180 days. They have done so in order to promote the IAD's express purpose to "encourage the expeditious and orderly disposition" of charges pending in one state against a person incarcerated in another state. Willoughby, 927 P.2d at 1387; State v. Patterson, 256 S.E.2d at 418; Fisher, 301 A.2d at 607. Particularly under the facts presented here-where Mr. Odhinn requested final disposition and waived extradition months before he was returned to Wyoming, Nebraska was aware of his request and waiver and yet sought additional waivers and advised Wyoming to obtain a governor's warrant, and months went by when authorities apparently took no action to comply with the IAD-we cannot agree that good cause existed to grant a continuance nearly a year after the 180 days had passed. We reverse the district court order and remand for entry of an order granting Mr. Odhinn's motion to dismiss.

[¥34] We do not reach this result easily. Dismissal of charges pending in Wyoming is not a desirable outcome. However, the clear intent of the IAD leaves us no reasonable alternative. In light of our holding that Mr. Odhinn's right to speedy trial under the IAD was violated, it is not necessary to address Mr. Odhinn's constitutional claim.

[¥35] Reversed.

GOLDEN, Justice,

dissenting.

[136] I respectfully dissent. The 180-day speedy trial period under the Interstate Agreement on Detainers (IAD) was to expire on May 26, 2001. Nebraska released Odhinn from imprisonment, however, on May 15, 2001, before expiration of the 180-day speedy trial period. The "majority rule," acknowledged by Odhinn's appellate defense counsel, holds that if the sending state (Nebraska) releases the accused (Odhinn) within the 180-day period, then the accused (Odhinn) is, under the plain language of the IAD, no longer a "prisoner" to whom the IAD provisions apply; therefore, the IAD's speedy trial provision no longer applied to the released Odhinn. See, e.g., United States v. Roy, 830 F.2d 628, 633 (7th Cir.1987); Cunningham v. State, 341 Ark. 99, 14 S.W.3d 869, 871-72 (2000); Womble v. State, 957 S.W.2d 839, 843-44 (Tenn.Cr.App.1997); State v. Holley, 82 Md.App. 381, 571 A.2d 892, 894-96 (App.1990); State v. Julian, 244 Kan. 101, 765 P.2d 1104, 1106-08 (1988); and State v. Tarango, 105 N.M. 592, 734 P.2d 1275, 1278 (App.1987).

[4137] Addressing Odhinn's garden-variety constitutional speedy trial claim, I agree with the State's position that Odhinn failed to raise that issue below, and it is deemed waived. Even on the merits, the claim fails because Wyoming received Odhinn on December 28, 2001, and he entered a conditional guilty plea on June 4, 2002. That period between those two dates fails to trigger a speedy trial claim analysis.

      . A detainer is " 'a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.! " Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), quoting United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) and H.R.Rep. No. 91-1018, p. 2 (1970); S.Rep. No. 91-1356, p. 2 (1970) U.S.Code Cong. & Admin.News 1970, pp. 4864, 4865.

      . The date upon which the petition was filed is important because if Mr. Odhinn filed it prior to May 27, 2001, it would toll the 180 days from the date it was filed until its denial-a period which might well defeat Mr. Odhinn's claim. We cannot consider this issue, however, because the date the petition was filed does not appear in the record or the parties' briefs.

      . The district court's decision letter states "November 26, 2001." That date has no significance in the record and we assume the district court meant to say "December 26, 2001"-the date Nebraska officials informed Wyoming Mr. Odhinn's appeal was dismissed.


author: MANNHEIMER, Judge.

text:
    Troy A. WILSON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8377.
    Court of Appeals of Alaska.
    Dec. 26, 2003.
    William B. Carey, Anchorage, for the Appellant.
    Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

On February 5, 2001, the Petersburg district court issued a warrant authorizing the search of Troy A. Wilson's residence for evidence of fourth-degree controlled substance misconduct under AS 11.71.040(a)(@)-pos-session of one ounce or more of marijuana for purposes of distribution. The question presented in this appeal is whether the information presented in the search warrant application established probable cause for the issuance of this warrant.

When a search warrant application rests on hearsay information, the State must establish (1) that each of its hearsay informants is generally a credible source of information, and (2) that each informant obtained their present information in a reliable way. As we explain in more detail below, the search warrant application in Wilson's case rested on information supplied by three informants. Of these three, the State established the credibility of only one. This one reliable informant had hardly any personal knowledge of the alleged incriminating facts. Instead, the main incriminating information was supplied by the two informants of unproven credibility. Moreover, with regard to these two informants' allegations, the State failed to establish that the informants had personal knowledge of many of their incriminatory assertions. We therefore conclude that the information presented to the district court failed to establish probable cause for the issuance of the warrant.

Details of the search warrant application

Petersburg Police Officer Gregg Siera applied for the search warrant and supplied all of the testimony in support of the search warrant application. He purported to rely on information he received from two police informants, "N-788" and "GSO1-O1". But, as will become clear in the next few paragraphs, Officer Siera actually relied on three informants: N-788, GSO1-O1, and an unnamed "friend" of N-788. Siera apparently was aware of the identities of N-788 and GSOl-01, but he had absolutely no information about this unnamed friend.

Siera told the Petersburg magistrate that, on January 27, 2001 (%.e., nine days before the search warrant application), he received a report from N-788. Siera testified that N-788 was a police informant who has proven to be reliable in the past.

N-788 told the police that a friend of his had purchased a quarter pound of marijuana from Troy Wilson for $900. But N-788 did not disclose any information about this friend-neither his name nor anything else about him.

Moreover, N-788 did not witness this sale (although his friend apparently showed him a supply of marijuana). Thus, N-788 was mainly reporting what his unnamed friend told him.

In addition, Siera did not know when this alleged sale of marijuana took place. Under questioning from the magistrate, Siera asserted that "N-788 contacted me shortly after the fact". But the "fact" that Siera is referring to must have been the unnamed friend's statement to N-788 that he had purchased marijuana-because N-788 said that he did not witness the sale. Even if we assume that N-788 made some statement to Siera concerning when the alleged sale took place, it is clear that N-788's information was obtained from his unnamed friend. In other words, any assertion about the timing of the purchase rests entirely on the unnamed friend's credibility.

N-788 told Siera that he himself had purchased marijuana from Wilson in the past. But Siera explained that N-788's purchase of marijuana occurred more than a year before.

Siera added one more incriminating assertion: he told the magistrate that, according to N-788, Wilson currently possessed approximately fourteen pounds of marijuana at his residence. But, again under questioning from the magistrate, Siera conceded that he had no idea how N-788 knew this. Siera told the magistrate, "I don't know if the [unnamed] friend told N-788 that, or if N-T788 ... talked with Wilson. I don't know how N-788 came by that information."

Siera attempted to bolster N-788®'s report with information obtained from another police informant, GSOLI-O1.

Siera testified that, on February 5, 2001 (ie., the day of the search warrant application, and nine days after Siera received N-7788's report), GSO1-O1 reported that "he had heard" that a man named TR. Kito had marijuana for sale, and that Kito had obtained this marijuana from Wilson.

But when the magistrate asked Siera how long ago it was that GSO1-O1 spoke to Kito, Siera responded that he did not know whether GSO1-O01 had ever spoken to Kito. Rather, GSO1-O1 had merely keard within the previous several days that Kito had marijuana for sale, and that Kito's supplier was Wilson. Siera conceded that he had no idea how GSO1-O1 heard that Kito had marijuana for sale, or how GSO1-O1 heard that Wilson was the one who sold the marijuana to Kito.

According to Siera's testimony, GSO1-OL1 reported that, approximately one month before (presumably in late December 2000 or early January 2001), GSO1-O1 had spoken personally to Wilson, and Wilson had told GSO1-O1 that "he was about to receive some marijuana and [that hel would be in the business of distributing it". But Siera admitted to the magistrate that GSO1-O1 was an untested informant. That is, Siera did not know whether GSO1-O1 was a credible source of information. ' ©

Why we conclude that this information fails to satisfy the Agwilar-Spinelli test

As we explained in the introduction to this opinion, when the State applies for a search warrant and bases its application on hearsay, the State must establish (1) that each of its hearsay informants is generally a credible source of information, and (2) that each informant obtained their present information in a reliable way. In this case, the State's search warrant application rested on information provided by three informants: GS01-01, N-788, and N-788's unidentified friend.

Of these three, N~788 was known to the police to be a reliable informant-t.e., a generally eredible source of information. GSO1-01 was also apparently known to the police, but his credibility was untested. And with regard to N-788's unidentified friend, the police had absolutely no information about him (or her)-other than N-788's assertion that N-788 had seen his friend in possession of a substantial amount of marijuana. This tended to show that the "friend" was a member of the criminal milieu, thus obliging the State to affirmatively establish the unidentified friend's credibility.

The State's problem in this case is that their one credible informant, N-788, had hardly any first-hand knowledge of Wilson's alleged criminal activities. N-788 had personally purchased an unspecified amount of marijuana from Wilson, but this was at least one year before.

The State's main allegation against Wilson was that Wilson had recently sold four ounces of marijuana to N-788's unidentified friend for the sum of $900. N-788 claimed to have recently seen his friend in possession of marijuana, but N-788 had no first-hand knowledge of how or when his friend obtained the marijuana. That is, N-788 did not personally know the identity of the person who supplied the marijuana, nor did N-788 know the purchase price or the date of the purchase. Indeed, N-788 apparently had no personal knowledge of whether his friend obtained the marijuana from one supplier or two or three. In short, all of the pertinent information about the alleged sale came from N-788's unidentified friend.

The State argues that the unidentified friend should be deemed a credible informant because the friend's statement to N-788 was against his (or her) penal interest. The State argues that, given the amount of marijuana involved, it is reasonable to assume that N-788's unidentified friend was a marijuana dealer. Thus, the State continues, when N-788's friend told N-788 about having recently purchased four ounces of marijuana, the friend would have perceived this statement as directly contrary to the friend's own interests.

In State v. Bianchi, 761 P.2d 127, 130-81 (Alaska App.1988), we accepted the State's argument that an informant's credibility could be bolstered by proof that their statements were against their penal interest. But the facts of Bianchi were quite a bit different from the present case. The identity of the drug purchaser / informant in Bianchi was known to the police and revealed to the magistrate. In addition, the informant provided a detailed account of her dealings with the suspected drug seller. But most important, her confessions of drug purchases and drug possession were made to the police. When we concluded that these statements were presumptively credible, we relied on the assumption that a person facing criminal charges for drug possession would not knowingly mislead the authorities about the source of the drugs-since the authorities could retaliate if they later discovered that the person's account was knowingly false. Bianchi, 761 P.2d at 181.

In other words, the rationale of Bianchi was not simply that the informant's statements were against her penal interest, but also that the informant knew that she might face repercussions if her statements to the police should prove to be knowingly false.

Here, the statements in question were made privately to a friend. Indeed, the ree-ord shows that N-788 was a good friend to this unidentified person-because even though N-788 was a police informant whose task was to alert the police to drug crimes, and even though N-788's unidentified friend purportedly possessed a substantial amount of marijuana (a sufficient amount for the friend to undertake sales of his or her own), N-788 would not disclose his friend's identity to the police.

This fact substantially undercuts the State's assertion that the unidentified friend must have known that the statements about the marijuana purchase could subject him (or her) to criminal penalties. And the second Bianchi factor-the speaker's knowledge that making false statements about the source of the marijuana could lead to adverse legal consequences-is completely lacking.

Indeed, there is nothing in the record to rebut the possibility that the unidentified friend was in the business of selling marijuana, that the friend obtained the marijuana from someone other than Wilson, but that the friend nevertheless intended for N-788 to go to the police with the accusation against Wilson-so that a potential competitor might be locked away in jail. Under this scenario, the unnamed friend's involvement tends to undercut N-788's own credibility-because N-788 obviously tailored his report to the police so as to protect the anonymity of his friend.

The State argues, in the alternative, that N-788's unidentified friend's statements about purchasing marijuana from Wilson were independently corroborated by information that the police received from the untested informant, GSOL-O1.

As explained above, GSO1-O1 told the police that, approximately one month before Siera applied for the search warrant (i.e., in late December 2000 or early January 2001), Wilson told GSO1-O1 that "he was about to receive some marijuana and [that he] would be in the business of distributing it". This information meets the first or "reliability" prong of the Agmilar-Spinelli test (i.e., it was obtained first-hand), but the State offered no evidence on the second prong of the Agmilar-Spinelli test (i.e., that GSO1-O1 was a credible source of information).

The State asserts that GSOL-O1's credibility is established by the corroborating fact that, in early February (that is, at about the time that Wilson said he would be receiving the marijuana), GSO1I-O1 heard that Wilson had sold marijuana to TR. Kito. The problem with this argument is that GSO1-~O1 only heard this alleged "fact". It is utter hearsay. Moreover, Siera conceded that he had no idea who the source of this hearsay was.

The State alternatively asserts that GSO-01's credibility was established by the corroborating fact that, in early February (that is, at about the time that Wilson said he would be receiving the marijuana), Wilson sold marijuana to N-T788's unidentified friend. But again, the "fact" that Wilson sold marijuana to N-788's unidentified friend is only a hearsay allegation-and the source of the hearsay is a person whose identity is completely unknown and whose credibility is unproven.

N-788 (whose credibility was established) did not personally witness the sale. N-788 heard his friend say that he or she had purchased marijuana from Wilson, and N-788 personally observed that his friend was in possession of marijuana. Siera testified that N-788 promptly reported these personal observations to the police. But this only proves the approximate timing of when N-788 was told about the purported sale. It does not prove either the occurrence of the sale, or (if the sale did indeed occur) the identity of the seller, or (if the seller was indeed Wilson) the timing of the sale. For all of these details, the magistrate was forced to rely on the unidentified friend's uncorroborated statement.

Finally, the State argues that even if its main allegations against Wilson rested on the untested assertions of the two informants (GSO1-Q1 and N-788's unidentified friend) whose credibility was unproven, these incriminating assertions should 'nevertheless be deemed "corroborated" because the accounts of the two informants dovetail so well. We disagree.

It is true that "[elross-corroboration among informants is a well-accepted method of demonstrating the validity of the information given. Thus, probable cause might be established in a case where two informants whose credibility was unproven nevertheless provided detailed first-hand accounts that were in substantial agreement. But probable cause can not be established by "repetition of ... conclusory accusation[(s]".

Here, the State rests its case on two unela-borated accusatory statements, each made by a different informant whose credibility is unproven and whose motives are unknown. We conclude that this is insufficient to warrant a court-sanctioned invasion of a citizen's home under the search and seizure clause of our state constitution (Article I, Section 14). The district court should not have issued this search warrant, and the evidence seized under the warrant must be suppressed.

Afterword

Although we invalidate the search warrant issued for Wilson's residence, we nonetheless wish to commend the Petersburg magistrate for her careful consideration of the search warrant application. Siera originally applied for the search warrant based solely on an affidavit. Magistrate Darlene Whitethorn immediately recognized the deficiencies in the affidavit and required Siera to. supplement his application with testimony. During this testimony, Magistrate Whitethorn asked probing questions and repeatedly required Siera both to clarify his factual allegations and to specify the source of those allegations. Obviously, we disagree with the magistrate's ultimate conclusion regarding the existence of probable cause for the warrant. But disagreement between appellate judges and trial judges is inevitable. What is important is that Magistrate Whitethorn conscientiously scrutinized the search warrant application using the analysis-thus fulfilling her two-fold duty to aid, society's legitimate law enforcement efforts while at the same time protecting citizens from unwarranted government intrusion into their homes and privacy.

Conclusion

The judgement of the superior court is REVERSED.

      . See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of state law, the Aguilar-Spinelli test governs the evaluation of hearsay information offered to support a search or seizure). The Aguilar-Spinelli test is derived from two decisions of the United States Supreme Court: Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). This test requires that, for each hearsay informant, the government must establish (1) the basis of the hearsay informant's knowledge and (2) the hearsay informant's credibility. See State v. Jones, 706 P.2d at 320.

      . See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed.1996), § 3.3(a), Vol. 2, pp. 88-89. See also State v. Jones, 706 P.2d at 324. ,

      . Ivanoff v. State, 9 P.3d 294, 300 (Alaska App. 2000).

      . Ivanoff, 9 P.3d at 300.