IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. RYAN JAMES PEELER, Appellant. NO. 69368-9-1 DIVISION ONE

UNPUBLISHED OPINION FILED: February 24, 2014 m

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### Lau, J. — "Oursystem assigns to the prosecutor, not the court, the responsibility 

### of ensuring that defendants are timely brought to trial." State v. Morris. 126Wn.2d 306, 314, 892 P.2d 734 (1995). Under the intrastate detainers act, chapter 9.98 RCW, a 

### prisoner who has been sentenced to a term of imprisonmentin a penal orcorrectional institution of this state must be broughtto trialwithin 120 days afterthe State receives a 

### prisoner's valid request forspeedy disposition of an untried indictment, information, or complaint, unless the court grants a continuance. Because the State failed to bring 

### Ryan Peeler totrial timely, the trial court erred in denyingPeeler's motion to dismiss the second degree assault charge. We reverse the conviction and judgment and remand to the trial court withinstructions to dismiss withprejudice pursuantto RCW 9.98.020.69368-9-1/2

FACTS Because the parties do not dispute the procedural facts and the principal issue implicates the timing ofevents, we summarize the following chronology: Jan. 28, 2011 Skagit County charges Peeler by information with second degree assault. Atthe time, Peeler is in Snohomish County Jail on an unrelated charge. 

### Sept. 12, 2011 Peeler is sentenced to a term ofimprisonment on the Snohomish County charge. 

### Sept. 20, 2011 Peeler commences his prison term at the Washington Corrections Center (WCC) in Shelton. Oct. 7, 2011 While at the WCC, Peeler initiates his first request for speedy 

### disposition ofthe untried Skagit County charge under RCW 9.98. 

### Oct. 18, 2011 WCC transports Peelerto King County pursuantto a September28, 2011 transport order. 

### Oct. 24, 2011 A WCC official signs a certificate of inmate status attesting that Peeler is a prisoner at that institution. 

### Oct. 26, 2011 The Skagit County prosecuting attorney and superior court receive Peeler's request and the certificate of inmate status. 

### Oct. 27, 2011 The Skagit County Superior Courtorders the Department of Corrections (DOC) to transport Peelerto the Skagit County Jail "as soon as 

### possible." Between October27, 2011, and November 17, 2011, DOC advises the Skagit County Prosecuting Attorney's Office bytelephone that itcannot comply with the transport orderbecause Peeler is in the King Countyjail. 

### Dec. 23, 2011 Peelerpleaded guilty and is sentenced to a term of imprisonment on the King County case. 

### Dec. 30, 2011 Peeler is transported from the King County jail to the WCC. 

### Jan. 20, 2012 Peeler initiates his second requestforspeedy disposition of the untried 

### Skagit County charge. AWCC official signs a second certificate of inmate status. 

### Feb. 2, 2012 The Skagit County Superior Courtissues a transport order for Peeler and the deputy prosecuting attorney notes a hearing for February 16, 2012. Feb. 14, 2012 DOC transports Peelerto the Skagit County Jail.

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### Feb. 16, 2012 The Skagit County SuperiorCourt arraigns Peeleron the second 

### degree assault charge and sets the initial trialdate forApril 9, 2012. Feb. 23, 2012 The 120-day deadline based on Peeler's first requestfor speedy disposition expires. 

### Aug. 17, 2012 Peeler moves to dismiss the Skagit County charge with prejudice for violation ofthe 120-day speedy disposition deadline under RCW 9.98.010(1). 

### Aug. 22, 2012 The Skagit County Superior Court denies Peeler's motion. 

### Aug. 27, 2012 Trialcommences over 10 months after the prosecutor and court receive Peeler's first speedy disposition request. 

### The trialcourt's August 22, 2012 order denying Peeler's motion to dismiss stated: 

### 1. For RCW9.98.010 to apply the person must be imprisoned and available for transport. 

### 2. Upon the firstrequestforfinal disposition in October of2011, the defendant was not available fortransport and therefore the 120-day clock could not start. 

### Ajury convicted Peeler of second degree assault and returned a specialverdictfinding thatthe victim's injuries substantially exceeded the level of bodily harm necessary to 

### constitute substantial bodily harm. The trial court imposed an exceptional 100-month sentence. Peeler appeals. ANALYSIS 

### This case involves the proper interpretation ofWashington's intrastate detainers
act. At issue are RCW 9.98.010 and RCW 9.98.020. RCW 9.98.010 provides: 

### (1) Whenever a person has entered upon a term ofimprisonmentin a penal or correctional institution of this state, and whenever during the continuance ofthe 

### term of imprisonmentthere is pending in this state any untried indictment, information, or complaint againstthe prisoner, he orshe shall be brought totrial 

### within one hundred twenty days after he orshe shall have caused to be delivered 

### to the prosecuting attorney and the superior court of the countyin which the indictment, information, or complaint is pending written notice ofthe place of his 

### or herimprisonment and his or her requestfor a final disposition to be made of -3-69368-9-1/4
the indictment, information, or complaint: PROVIDED, That for good cause shown in open court, the prisoner or his or her counsel shall have the right to be present, the court having jurisdiction ofthe matter may grant any necessary or reasonable continuance. The request ofthe prisoner shall be accompanied by a certificate ofthe superintendent having custody ofthe prisoner, stating the term ofcommitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount ofgood time earned, the time ofparole eligibility ofthe prisoner, and any decisions of the indeterminate sentence review board relating to the prisoner. 

### (2) The written notice and requestfor final disposition referred to in subsection (1) of this section shall be given or sent by the prisonerto the 

### superintendent having custody ofhim or her, who shall promptlyforward it togetherwith the certificate to the appropriate prosecuting attorney and superior court by certified mail, return receipt requested. 

### (3) The superintendent having custody of the prisoner shall promptly inform him or her inwriting of the source and contents of any untried indictment, information, or complaint against him or her concerning which the superintendent 

### has knowledge and of his or her right to make a requestforfinal disposition thereof. RCW 9.98.020 provides: 

### In the eventthat the action is not broughtto trial withinthe period of time as 

### herein provided, no court of this state shall any longer havejurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force 

### or effect, and the court shall enter an order dismissing the same with prejudice. Peeler contends that the State violated his right to a timely trial under 

### chapter 9.98 RCWdespite hiscompliance with the requirements ofRCW 9.98.010. The State claims Peeler's firstrequestfor disposition was voidbecause Peelerwas inKing 

### Countyjail on the date ofreceipt. It argues that a request iseffective only if, on the date ofreceipt, the prisoner is (1) physically located at a state prison and (2) availablefor transport. Asdiscussed below, nothing in the plain text of the intrastate detainers act supports the State's interpretation. 

### The meaning of a statute is a question of lawwe review de novo. In 

### interpreting a statute, ourfundamental objective is to ascertain and carry out the 

### legislature's intent. Statutory interpretation beginswith a statute's plain meaning. Plain meaning "is to be discerned from the ordinary meaning of the language at
-4-69368-9-1/5 issue, the context of the statute in which that provision is found, related 

### provisions, and the statutory scheme as a whole." State v. Enqel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009). Ifthe statute is unambiguous after a review of the plain meaning, the court's inquiry is at an end. A statute is ambiguous when it is "'susceptible to two or more reasonable interpretations,' but 'a statute is not 

### ambiguous merely because different interpretations are conceivable.'" Estate of Haselwood v. Bremerton Ice Arena, Inc.. 166 Wn.2d 489, 498, 210 P.3d 308 

### (2009) (quoting State v. Hahn. 83 Wn. App. 825, 831, 924 P.2d 392 (1996)). State v. Gray. 174 Wn.2d 920, 926-27, 280 P.3d 1110 (2012) (citations omitted). "We cannot add words or clauses to an unambiguous statute when the 

### legislature has chosen not to include that language." State v. Delqado. 148 Wn.2d 723, 727, 63 P.3d 792 (2003). This rule holds even ifwe believe "the Legislature intended 

### something elsebutfailed to express itadequately."1 Statev. Chester. 133Wn.2d 15, 21, 940 P.2d 1374 (1997). In sum, when analyzing an unambiguous statute, we


### assume that the legislature "'means exactly what itsays.'" Delqado. 148 Wn.2d at 727 

### (quoting Davis v. Dep't of Licensing. 137 Wn.2d 957, 964, 977 P.2d 554 (1999)). Under the act, ifa prisoner "has entered upon a term ofimprisonment in a penal
or correctional institution of this state" and during this imprisonment has an untried 

### indictment, information, or complaint pending inWashington, he may request a final 

### disposition of the untried charge within 120 days bydelivering a written notice and requestto the prosecuting attorney and superior court where the untried charge is 

### pending. The notice mustidentifythe place ofimprisonment. The superintendentwith custody over the prisoner mustnotify the prisonerin writing of any known untried indictment, information, or complaint. The notice must include the prisoner's right to

1 DivisionThree of this court has concluded, "The legislative history of RCW 9.98.010 is nonexistent." State v. Morris. 74 Wn. App. 293, 297, 873 P.2d 561 

### (1994), aff'don other grounds. 126 Wn.2d 306, 892 P.2d 734 (1995). -5-69368-9-1/6 request a final disposition ofthe charge. The superintendent must promptly forward the prisoner's notice and request together with the superintendent's notice ofinmate status to the appropriate prosecuting attorney and superior court. Ifthe untried charge is not tried within 120 days, the court losesjurisdiction and the untried indictment, information,

or complaint must be dismissed with prejudice. This mandatory 120-day rule is subject to the trial court's grant of any necessary or reasonable good cause continuance. "[Ajctual receipt by the prosecuting attorney and superior court ofthe county in which the indictment, information, or complaint is pending commences the 120-day period." Morris. 126 Wn.2d at 313. RCW 9.98.010(1) casts the 120-day deadline in absolute terms by employing the
term "shall." See Erection Co. v. Dep't of Labor & Indus.. 121 Wn.2d 513, 518, 852 

### P.2d 288 (1993) ("It is well settled that the word 'shall' in a statute is presumptively 

### imperative and operates to create a duty."). Emphasizing the mandatory nature of the statute, our Supreme Court explained, "The whole thrust ofthe statute is to ensure that


### once the period properly commences, the prisoner 'shall be brought to trial'within 120 days." Morris. 126 Wn.2d at 314 (quoting RCW 9.98.010(1)). 

### The State argues RCW9.98.010's "plainlanguage" applies. Resp't's Br. at 28. 

### We agree. The problemwith the State's "plain language" argument is itreads into the statute language that appears nowhere in the statute. The State claims that an otherwise valid disposition request is rendered a nullity ifthe prisoner is located in a 

### county jailinstead of a state prison on the request receipt date. The State cites no 

### controlling authority. RCW 9.98.010(1) unambiguously applies to a prisoner who is serving a sentence in a state prison and during this imprisonment, has an untried

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### indictment, information, orcomplaintpending in Washington.2 The statuteimposes no physical location requirement. Ifthe legislature had intended this result, itcould have easily drafted the statute to include it. On September 12, 2011, the Snohomish County Superior Court sentenced Peeler to a 24-month term of imprisonment. He was serving this prison term atWCC, a state prison facility, when he initiated his first disposition request on October 7, 2011, for the Skagit County charge. The Skagit County prosecuting attorney and superior court received Peeler's disposition request on October 26, 2011, while he was still serving his 

### term ofimprisonment.3 Accordingly, weconclude under the statute's plain language that Peeler's first request was effective to trigger the 120-day disposition rule. In a related argument, the State claims Peeler's request was void because it misidentified Peeler's place of imprisonment on the date ofreceipt. The State argues, "[Peeler's] notice was also ineffective since his 'notice ofthe place of his or her imprisonment' was also incorrect since he was no longer inthe custody ofthe 

### department ofcorrections, but instead was in King County." Resp't's Br. at 28. We are not persuaded by this undue, hypertechnical argument. Peeler's first disposition


### 2Indeed, the State acknowledges thispoint: "The State contends that bythe plain language of the statute providing forrequestfor disposition for untried indictment applies when a person is serving a term of imprisonment." Resp't's Br. at 25. 

### 3In State v. Bishop. 134Wn.App. 133, 139 P.3d 363 (2006),the court rejected the State's contention that the defendant was not serving a sentence when she 

### instituted a request underthe interstate agreement on detainers (IAD), chapter 9.100 RCW, but merely awaiting resentencing after her drug rehabilitation program was revoked. The court held that the defendant's removal from the drug program did not 

### remove her from her original sentence. She was still under her term ofimprisonment 

### when she requested disposition of the Washington charges underthe IAD. Bishop. 134 Wn. App. at 139.69368-9-1/8 request stated, "I am a prisoner at the Washington Corrections Center, P.O. Box 900, Shelton, WA." This statementwas accurate when made. The State acknowledges, "Peelerwas in the Department of Corrections at the time he submitted the notice and request for final disposition." Resp't's Br. at 27. The State also argues that Peeler's first request is void because a prisoner must be available for transport on the date the prosecuting attorney and superior court receive his or her disposition request. This unsupported argument is not persuasive for several reasons. First, nothing inthe statute's plain text imposes such a limitation. We decline to either omit language that is inthe statute or add language that the legislature did not intend.4 Next, noticeably absentfrom the State's briefing is any discussion on the 

### statute'scontinuance provision quoted above.5 This provision confers on thecourt broad discretion to grant, for good cause shown, "any necessary or reasonable continuance." RCW 9.98.010(1). We acknowledge the State's legitimate concern that Peelerwas unavailable for transport due to a conflicting King County transport order. 

### There is no dispute that the State never sought a continuance underthis provision at 

### any time despite its concern. See State v. Svrotchen. 61 Wn. App. 261, 810 P.2d 64


### 4Following oral argumentin this case, the Statefiled a RAP 10.8statement of additional authorities citing State v. Alexus. 91 Wn.2d 492, 588 P.2d 1171 (1979), State v. Slattum. 173 Wn. App. 640, 295 P.3d 788 (2013), State v. Peterson. 137 Idaho 255, 47 P.3d 378 (Ct. App. 2002), State v. Foster. 107 Or. App. 481, 812 P.2d 440 (1991), and State v. Julian. 244 Kan. 101, 765 P.2d 1104 (1988). These cases do not control. 

### 5"Provisos operate as limitations upon or exceptions to the general terms ofthe statute to which they are appended and as such, generally, should be strictlyconstrued with any doubtto be resolved in favor of the general provisions, ratherthan the exceptions." State v. Wright. 84 Wn.2d 645, 652, 529 P.2d 453 (1974). -8-69368-9-1/9 (1991) (good cause existed for granting continuance in orderto obtain presence of defendant incarcerated by federal government in another state for purpose of determining whether speedy trial requirements of interstate agreement on detainers had 

### been met).6 Ourrecord fails to showwhy the State took nofurther action totransfer Peelerto Skagit County after he pleaded guilty to the King County charges on December 23, 2011, two months before the 120 days expired on February 23, 2012. Nothing in our record indicates the State contacted King County to determine Peeler's availability fortransport to Skagit County afterthe guilty plea. The record shows a second Skagit County transport orderon February 2, 2012, and arraignment scheduled
on February 16, 2012, 7 days before expiration ofthe 120 days. At Peeler's 

### arraignment, theparties apparently agreed to anApril 9, 2012 trial date.7 The whole thrust ofthe statute is to ensure that once the period properly commences, the prisoner "shall be brought to trial" within 120 days. RCW 9.98.010(1). Our system assigns to the prosecutor, not the court, the 

### responsibility ofensuring that defendants are timely brought to trial. See generally U.S. Const, amend. 6 ("[i]n all criminal prosecutions, the accused shall 

### enjoy the right to a speedy and publictrial"); RCW 9.98.020 ("[i]n the eventthe action is not broughtto trial withinthe period of time as herein provided, no court of this state shall any longer havejurisdiction thereof). Morris. 126 Wn.2d at 314 (alterations in original).



### 6The continuanceprovision language in the intrastate detainers act and the interstate agreement on detainers (IAD) is nearly identical. Division Three of this court has noted, "RCW 9.98.010 serves the same purpose for intrastate detainers as the IAD does for interstate detainers. The purpose of both acts is 'to encourage the expeditious 

### and orderly dispositionof.
. . charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.'" Morris. 74 Wn. 

### App. at 297 (quoting RCW 9.100.010, art. I), aff'd on other grounds. 126 Wn.2d 306, 892 P.2d 734 (1995). 

### 7The record shows several trialcontinuances afterthe April 9, 2012 trialdate. -9-69368-9-1/10

For the reasons discussed above, the trial court erred when it denied Peeler's motion to dismiss the charge for violation of his right to a timely trial under chapter 9.98 RCW. The State failed to bring Peeler to trial within 120 days after it received his timely and valid disposition request under RCW 9.98.010. Because RCW 9.98.020's mandatory language requires the dismissal with prejudice of an information ifthe defendant is not brought to trial within 120 days of a valid disposition request, and because no continuances have been granted, we reverse Peeler's conviction andjudgment and remand to the trial court with instructions to dismiss the 

### chargewith prejudice.8

WE CONCUR: 

# Uf4f/4trfMy.

8Given ourdisposition, we need notaddress Peeler's remaining contentions. -10-