State v. Lomon

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NOT DESIGNATED FOR PUBLICATION

No. 116,497

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JAMES SCOTT LOMON,
Appellee.


MEMORANDUM OPINION

Appeal from Morris District Court; MARGARET F. WHITE, judge. Opinion filed April 28, 2017.
Affirmed.

Laura E. Allen, county attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before SCHROEDER, P.J., GREEN, J., and BURGESS, S.J.

Per Curiam: In April 2014, the State charged James Scott Lomon with burglary
and criminal damage to property. At that time, Lomon was in Kansas Department of
Corrections (KDOC) custody at Hutchinson Correctional Facility (HCF). After receiving
notice, Lomon submitted a written request with HCF officials for final disposition of the
pending charges. Ultimately, HCF officials did not send the request to the county
attorney and the district court where the charges were pending. The State subsequently
took no action to prosecute Lomon's case, and, on June 23, 2016, Lomon filed a pro se
motion to dismiss pursuant to the Uniform Mandatory Disposition of Detainers Act
(UMDDA), K.S.A. 22-4301 et seq. After an evidentiary hearing, the district court granted
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Lomon's motion and dismissed the charges against him. The State now appeals,
contending Lomon failed to comply with the UMDDA and, thus, was not entitled to
dismissal of the charges.

FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 2014, the State filed burglary and criminal damage charges against
Lomon in Morris County District Court. At that time, Lomon was in KDOC custody at
HCF. Lomon became aware of the pending charges and submitted a written request to
file a 180-day writ with his Unit Team at HCF. HCF officials did not send Lomon's
request to the Morris County Attorney or district court.

When HCF authorities did not forward his request, Lomon filed a grievance with
HCF's warden. Lomon's grievance stated that he was dissatisfied with his Unit Team's
response to his request to file a 180-day writ. On June 25, 2014, HCF's warden
responded, stating he received the Team Unit's response and concurred. The warden
further stated that "[t]he KDOC does not pay the fees required to file a 180 day writ. A
review of your account shows that you have $47.80 on your books and are capable of
paying for the associated fees of the 180 day writ."

On July 20, 2014, Lomon mailed a handwritten 180-day writ to the Morris County
Attorney. In the writ, Lomon sought "disposition of detainer" in Morris County. The writ
stated that Lomon was unaware of the specific case number associated with the charges
against him.

On January 10, 2015, Lomon submitted an inmate request, asking "what is
required . . . to file a 180 day writ on detainers." In the request, Lomon also asked
whether he could personally file a 180-day writ and stated he had four detainers in four
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different counties. On January 14, 2015, HCF advised Lomon that he needed to send "2
SPC's per case."

The State subsequently took no action to prosecute Lomon's case. On June 23,
2016, Lomon filed a pro se motion to dismiss pursuant to the UMDDA. In the
handwritten motion, Lomon alleged that "he made a request in writing to officials having
custody of him for final disposition of all warrants and complaints pending against him."
According to Lomon's motion, prison officials informed Lomon that he lacked sufficient
funds to pay the associated filing fees and refused to forward his request. Based on the
prison officials' failure to send the request, Lomon requested that the district court
dismiss all charges against him with prejudice.

The district court held a first appearance hearing on July 21, 2016. After that
hearing, the district court requested the appointment of a public defender.

On August 17, 2016, the district court held a hearing on Lomon's motion to
dismiss. At the hearing, Lomon testified that, after he became aware of the pending
charges in Morris County, he "presented to the authorities [at HCF], as [he was] supposed
to, with a written request to file a writ on the case." Lomon clarified that he provided the
written request to the Unit Team. According to Lomon, the Unit Team did not forward
his written request for a writ of detainer to the Morris County District Court or the Morris
County Attorney because he lacked enough money to pay the associated filing fees.

Lomon stated that he sent the handwritten 180-day writ to the Morris County
Attorney because HCF officials failed to forward his detainer request and he "assumed it
was the only way [he] was going to get to the courthouse." Lomon explained that he had
filled out an identical form and sent it to the courthouse in Douglas County and the court
responded to it and brought him to court. Lomon further stated that he did not have the
money to file it "correctly through the facility, so [he] just figured this would work."
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Lomon admitted that he did not send a copy of the handwritten 180-day writ to the
Morris County District Court.

After Lomon testified, the parties offered their closing arguments. Lomon
contended that more than 180 days had lapsed and, in turn, the district court did not have
jurisdiction to entertain the State's charges. Lomon conceded that he did not send the 180-
day writ to the district court and did not send it by certified mail. However, citing State v.
Burnett, 297 Kan. 447, 301 P.3d 698 (2013), Lomon argued that KDOC had the burden
to send the detainer information and it was inappropriate to hold KDOC's failure against
him. Lomon concluded that, as in Burnett, he substantially complied with the writ
procedures "as best he could given the circumstances" and any failures were attributable
to KDOC.

In response, the State argued that Lomon's motion assumed that his failure to
comply with the UMDDA was KDOC's fault. The State requested that the district court
deny Lomon's motion for lack of compliance. In reply, Lomon emphasized Burnett's
holding that KDOC's failure should not be held against him.

After hearing the parties' closing arguments, the district court took a recess to read
Burnett and make a determination. Ultimately, the district magistrate judge granted
Lomon's motion and dismissed the State's charges:

"THE COURT: Okay. Well, I've read the case too. And it is somewhat—this
whole thing is troubling, because I look at the detainer, the detainer is dated January 13th,
2015. I go back and I look, and it looks to me like there was—wait, was that 2014? Yeah,
there was one filed two thousand—what did I say? 2015? Yeah, that's—if I didn't, that's
what I meant. There—but it—it—it wasn't—we didn't receive it back until June 23rd of
2016. That's what really bothers me.
"The other thing is, is that it looks like Mr. Lomon was asking about what was
required to file [a] 180-day writ on detainers. I'm looking at that. That's what was
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attached to his request, to his writ. That was dated on January 10th of 2015. Their
response was not until June—well, June 25th of 2014, it appears there was—if I'm
getting my dates right now, that there was a response made for something. I don't know
whose writ it was. I don't know if it was for all the writs.
"I'm looking to see, when was this complaint filed? It was filed—okay it was
filed in April of 2015—or '14. So this information where he's talking about—or where
there is apparently a decision made at the [HCF] was on June 25th of 2014. It appears to
me they're basing everything on money. And while I understand it's not a constitutional
right, it's a statutory right for them to have—to be brought to trial within 180 days.
"There is no—I don't see that there's any fault on [Lomon's] part. I'm looking at
what the [KDOC] did. I don't know if they're a bunch of knuckleheads there or what. But
it appears to me that there—that they had the information, based upon what I'm reading.
Yes, there are assumptions to be made. Mr. Lomon did state what he did may have been
not only for this case but for other cases. Don't know what's happened in the other cases. I
know what you said happened in Saline County, I think it was—I don't remember which
county. But I'm going to have to grant his writ because I just don't feel—I feel like the
problem is with the Department of Corrections."

The State timely appealed.

DID THE DISTRICT COURT ERR IN GRANTING LOMON'S MOTION TO DISMISS?

On appeal, the State contends that the district court erred in finding Lomon
complied with the UMDDA and that, in turn, Lomon was not entitled to dismissal of the
charges against him. An appellate court has unlimited review when determining whether
a defendant's statutory right to speedy trial was violated. Further, statutory interpretation
and determination of jurisdiction involve questions of law over which an appellate court
has unlimited review. Burnett, 297 Kan. at 451.

The UMDDA, K.S.A. 22-4301 et seq., provides the procedure for Kansas
prisoners to request final disposition of other pending charges within the state. "Once the
prisoner properly initiates disposition of other pending charges under the UMDDA, the
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State's failure to bring those charges to trial within 180 days deprives the district court of
jurisdiction." Burnett, 297 Kan. at 448.

K.S.A. 2014 Supp. 22-4301(a) outlines the manner in which a Kansas prisoner
must request final disposition of pending charges:

"Any person who is imprisoned in a penal or correctional institution of this state
may request final disposition of any untried indictment, information, motion to revoke
probation or complaint pending against such person in this state. The request shall be in
writing addressed to the court in which the indictment, information, motion to revoke
probation or complaint is pending and to the county attorney charged with the duty of
prosecuting it, and shall set forth the place of imprisonment."

Thus, to invoke the UMDDA, a prisoner must submit a written request for final
disposition of any pending charges "to the warden, superintendent or other officials
having custody of the prisoner." K.S.A. 22-4302; see Burnett, 297 Kan. at 454. The
request must be addressed to the court and county attorney where the charges are pending
and state the prisoner's "place of imprisonment." K.S.A. 2014 Supp. 22-4301(a).
"[S]ubstantial compliance with the UMDDA is sufficient to invoke its protections."
Burnett, 297 Kan. at 453.

Once a prisoner has properly invoked the UMDDA, the burden to send the request
and a certification of the prisoner's term of commitment shifts to the prison officials. 297
Kan. at 454. "'[T]he warden, superintendent or other officials having custody of the
prisoner' are obligated to 'forthwith' send the district court and county attorney the request
and certification." 297 Kan. at 454-55. The Kansas Supreme Court has recognized that, if
prison officials deficiently execute their statutory responsibilities, their failures are not
attributable to the prisoner and do not prejudice the prisoner's ability to invoke the
UMDDA. 297 Kan. at 455.

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In Burnett, a prisoner was charged in Reno County on September 7, 2006. Soon
thereafter, the prisoner began serving a prison sentence in an unrelated case in
McPherson County. On February 7, 2007, the prisoner filed a request for final disposition
with the Reno County District Court, requesting a resolution within 180 days of all
pending charges against him in Reno County. The prisoner also sent a copy of his request
to the Reno County District Attorney, the Reno County District Court clerk, and the
Kansas Secretary of Corrections. As provided in the UMDDA, the KDOC should have
sent a copy of the prisoner's request along with a certificate attesting to the prisoner's
term of commitment to the Reno County District Court and to the Reno County District
Attorney. See K.S.A. 22-4302. Yet, the prisoner was physically delivered to Reno County
authorities to face the charges against him. Sometime after his preliminary hearing, the
prisoner filed a motion to dismiss because he had not been brought to trial within 180
days. The district court denied the motion, and this court affirmed.

On review, the Kansas Supreme Court reversed. 297 Kan. at 457-59. Among other
issues, the court analyzed whether the prisoner had to prove when the district attorney
received his request and certification. 297 Kan. at 454-55. The Kansas Supreme Court
stated that the undisputed evidence showed the prisoner filed his request with the district
court on February 7, 2007. The court explained that, if prison officials failed to properly
execute its statutory responsibilities, their failures were not attributable to the prisoner.
And the prisoner could not be deprived of his statutory rights under the UMDDA "'by the
laches of public officials' [Citations omitted.]" 297 Kan. at 455. The court ultimately
concluded that 180 days lapsed since the prisoner filed his request with the district court
on February 7, 2007; therefore, the Reno County District Court lacked jurisdiction to
hold a jury trial and erred in denying the prisoner's motion to dismiss. 297 Kan. at 459.

In this case, it is clear that Lomon was not in full compliance with the UMDDA.
He filed a notice with officials at the prison where he was located but it was not
addressed to the county attorney or the district court where the charges Lomon wanted
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addressed were filed. Apparently, the prison officials took no action on the request made
by Lomon. However, when Lomon inquired why no action had been taken on his request,
he was not told that his filing was inadequate. He was told that the filing was not being
processed because Lomon was responsible for paying fees as a precursor to the
processing of the request.

The problem with this response is that there is no statutory authority in the
UMDDA requiring the payment of any fee to pursue a 180-day writ. Furthermore, there
is no reference made in the written response from the prison officials to any authority
Lomon could refer to in order to address the problem as outlined by the prison officials.
Lomon made a subsequent inquiry on how to proceed and was given information that did
not answer the inquiry. This led to apparent confusion on Lomon's part on how to
proceed in that he felt the only way to move forward was to contact Morris County
directly. There is some logic in Lomon's perception in that he had contacted Douglas
County directly in regard to a 180-day writ and received a response.

Lomon took specific steps in an attempt to pursue a 180-day writ in Morris
County. While prison officials have an affirmative duty to pass a 180-day writ request to
the necessary parties, the State argues that the UMDDA was not properly invoked and
therefore the duty to act never manifested itself. However, there is certainly an obligation
to provide a prisoner with accurate information when it is decided that prison officials do
not feel there is an obligation to act and in all events not create a barrier to a prisoner
pursuing his legal options. In this case, Lomon took action to attempt to pursue a 180-day
writ and was misled on how to pursue that legal right. When he perceived that prison
officials were not going to take action, he took unilateral action to pursue his right. In this
case, Lomon took sufficient action to purse his right to a180-day writ and the State
impeded those efforts. Consistent with the reasoning in Burnett, Lomon's efforts should
not be burdened with the State's actions. Lomon took sufficient steps to invoke the
UMDDA.
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In reading the record on appeal, the only clear starting date for the UMDDA's 180-
day period was July 20, 2014, when Lomon mailed the handwritten 180-day writ to the
Morris County Attorney. The record indicates that Lomon's request to the Unit Team at
HCF occurred sometime before Lomon submitted the handwritten writ, but no evidence
suggests an exact date. In any event, the State did not prosecute Lomon's case until
Lomon filed his pro se motion to dismiss on June 23, 2016, nearly 2 years after he mailed
the handwritten writ. Indeed, the district court did not hold a first appearance hearing
until July 21, 2016.

Because the State otherwise asserts no statutory exemption, the passage of the
180-day statutory period is conclusive of undue delay. See K.S.A. 2014 Supp. 22-4303;
Burnett, 297 Kan. at 459. Since Lomon properly invoked the UMDDA, the district court
lacked jurisdiction and, therefore, correctly granted Lomon's motion to dismiss.

Affirmed.