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UNPUBLISHED OPINION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

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Lau, J. — "Our system assigns to the prosecutor, not the court, the responsibility

of ensuring that defendants are timely brought to trial." State v. Morris. 126 Wn.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 imprisonment in a penal or correctional

institution of this state must be brought to trial within 120 days after the 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 to trial timely, the trial court erred in denying Peeler's motion to dismiss the

second degree assault charge. We reverse the conviction and judgment and remand to

the trial court with instructions to dismiss with prejudice pursuant to 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 of events, we summarize the following chronology:

Jan. 28, 2011 Skagit County charges Peeler by information with second degree

assault. At the time, Peeler is in Snohomish County Jail on an unrelated

charge.

Sept. 12, 2011 Peeler is sentenced to a term of imprisonment on the Snohomish

County charge.

Sept. 20, 2011 Peeler commences his prison term at the Washington Corrections

Center (WCC) in Shelton.

Oct. 7, 2011 While at the WCC, Peeler initiates his first request for speedy

disposition of the untried Skagit County charge under RCW 9.98.

Oct. 18, 2011 WCC transports Peeler to King County pursuant to a September 28,

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 Court orders the Department of Corrections

(DOC) to transport Peeler to the Skagit County Jail "as soon as

possible." Between October 27, 2011, and November 17, 2011, DOC

advises the Skagit County Prosecuting Attorney's Office by telephone

that it cannot comply with the transport order because Peeler is in the

King County jail.

Dec. 23, 2011 Peeler pleaded 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 request for speedy disposition of the untried

Skagit County charge. AWCC official signs a second certificate of

inmate status.

Feb. 2, 2012 The Skagit County Superior Court issues a transport order for Peeler

and the deputy prosecuting attorney notes a hearing for February 16,

2012.

Feb. 14, 2012 DOC transports Peeler to the Skagit County Jail.

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Feb. 16, 2012 The Skagit County Superior Court arraigns Peeler on the second

degree assault charge and sets the initial trial date for April 9, 2012.

Feb. 23, 2012 The 120-day deadline based on Peeler's first request for speedy

disposition expires.

Aug. 17, 2012 Peeler moves to dismiss the Skagit County charge with prejudice for

violation of the 120-day speedy disposition deadline under RCW

9.98.010(1).

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

Aug. 27, 2012 Trial commences over 10 months after the prosecutor and court receive

Peeler's first speedy disposition request.

The trial court's August 22, 2012 order denying Peeler's motion to dismiss stated:

1. For RCW 9.98.010 to apply the person must be imprisoned and available for

transport.

2. Upon the first request for final disposition in October of 2011, the defendant

was not available for transport and therefore the 120-day clock could not

start.

Ajury convicted Peeler of second degree assault and returned a special verdict finding

that the 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 of Washington'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 of imprisonment in a penal or

correctional institution of this state, and whenever during the continuance of the

term of imprisonment there is pending in this state any untried indictment,

information, or complaint against the prisoner, he or she shall be brought to trial

within one hundred twenty days after he or she shall have caused to be delivered

to the prosecuting attorney and the superior court of the county in which the

indictment, information, or complaint is pending written notice of the place of his

or her imprisonment and his or her request for a final disposition to be made of

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the indictment, information, or complaint: PROVIDED, That for good cause

shown in open court, the prisoner or his or her counsel shall have the right to be

present, the court having jurisdiction of the matter may grant any necessary or

reasonable continuance. The request of the prisoner shall be accompanied by a

certificate of the superintendent having custody of the prisoner, stating the term

of commitment under which the prisoner is being held, the time already served,

the time remaining to be served on the sentence, the amount of good time

earned, the time of parole eligibility of the prisoner, and any decisions of the

indeterminate sentence review board relating to the prisoner.

(2) The written notice and request for final disposition referred to in

subsection (1) of this section shall be given or sent by the prisoner to the

superintendent having custody of him or her, who shall promptlyforward it

together with the certificate to the appropriate prosecuting attorney and superior

court by certified mail, return receipt requested.

(3) The superintendent having custody of the prisoner shall promptly

inform him or her in writing of the source and contents of any untried indictment,

information, or complaint against him or her concerning which the superintendent

has knowledge and of his or her right to make a request for final disposition

thereof.

RCW 9.98.020 provides:

In the event that the action is not brought to trial within the period of time as

herein provided, no court of this state shall any longer have jurisdiction thereof,

nor shall the untried indictment, information or complaint be of any further force

or effect, and the court shall enter an order dismissing the same with prejudice.

Peeler contends that the State violated his right to a timely trial under

chapter 9.98 RCW despite his compliance with the requirements of RCW 9.98.010. The

State claims Peeler's first request for disposition was void because Peeler was in King

County jail on the date of receipt. It argues that a request is effective only if, on the date

of receipt, the prisoner is (1) physically located at a state prison and (2) available for

transport. As discussed 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

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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 else but failed to express it adequately."1 State v. Chester. 133 Wn.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 of imprisonment in a penal

or correctional institution of this state" and during this imprisonment has an untried

indictment, information, or complaint pending in Washington, he may request a final

disposition of the untried charge within 120 days by delivering a written notice and

request to the prosecuting attorney and superior court where the untried charge is

pending. The notice must identify the place of imprisonment. The superintendentwith

custody over the prisoner must notify the prisoner in writing of any known untried

indictment, information, or complaint. The notice must include the prisoner's right to

1 Division Three 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'd on other grounds. 126 Wn.2d 306, 892 P.2d 734 (1995).

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request a final disposition of the charge. The superintendent must promptly forward the

prisoner's notice and request together with the superintendent's notice of inmate status

to the appropriate prosecuting attorney and superior court. Ifthe untried charge is not

tried within 120 days, the court loses jurisdiction 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 of the 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 of the 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 RCW 9.98.010's "plain language" applies. Resp't's Br. at 28.

We agree. The problem with the State's "plain language" argument is it reads 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 jail instead 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, or complaint pending in Washington.2 The statute imposes no

physical location requirement. Ifthe legislature had intended this result, it could 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 at WCC, 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, we conclude 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 of receipt. The State argues,

"[Peeler's] notice was also ineffective since his 'notice of the place of his or her

imprisonment' was also incorrect since he was no longer in the custody of the

department of corrections, 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 this point: "The State contends that bythe

plain language of the statute providing for request for disposition for untried indictment

applies when a person is serving a term of imprisonment." Resp't's Br. at 25.

3 In State v. Bishop. 134 Wn. 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 under the 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 of imprisonment

when she requested disposition of the Washington charges under the 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 statement was accurate when made. The State acknowledges,

"Peeler was 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 in the statute's plain text imposes such a limitation. We

decline to either omit language that is in the statute or add language that the legislature

did not intend.4

Next, noticeably absent from the State's briefing is any discussion on the

statute's continuance provision quoted above.5 This provision confers on the court

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

Peeler was unavailable for transport due to a conflicting King County transport order.

There is no dispute that the State never sought a continuance under this provision at

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

4Following oral argument in this case, the State filed a RAP 10.8 statement 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 strictly construed

with any doubt to be resolved in favor of the general provisions, rather than the

exceptions." State v. Wright. 84 Wn.2d 645, 652, 529 P.2d 453 (1974).

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(1991) (good cause existed for granting continuance in order to 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 no further action to transfer

Peeler to 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 for transport to Skagit County after the guilty plea. The record shows a

second Skagit County transport order on February 2, 2012, and arraignment scheduled

on February 16, 2012, 7 days before expiration of the 120 days. At Peeler's

arraignment, the parties apparently agreed to an April 9, 2012 trial date.7

The whole thrust of the 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 of ensuring 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 public trial"); RCW 9.98.020 ("[i]n the event the

action is not brought to trial within the period of time as herein provided, no court

of this state shall any longer have jurisdiction thereof).

Morris. 126 Wn.2d at 314 (alterations in original).

6The continuance provision 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 disposition of. . . 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 trial continuances after the April 9, 2012 trial date.

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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 and judgment and remand to the trial court with instructions to dismiss the

charge with prejudice.8

WE CONCUR:

Uf4f/4trfMy.

8Given our disposition, we need not address Peeler's remaining contentions.

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