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COURT OF APPEALS DECISION DATED AND FILED November 25, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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State of
Plaintiff-Respondent, v. William M. Onheiber,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
¶1
BACKGROUND
¶2 In September 2005, Onheiber began serving a five-year term of confinement in federal custody following the revocation of his supervised release. Onheiber’s supervision was revoked because he violated his supervision conditions by selling large quantities of marijuana to a confidential informant. Nine months later, on June 8, 2006, the Marathon County District Attorney’s office filed a criminal complaint charging Onheiber for the marijuana deliveries. The circuit court issued a nationwide arrest warrant the following afternoon.
¶3 Shortly thereafter, on June 14, 2006, Anna Anderson from the Federal Prison Camp in Duluth, Minnesota, where Onheiber was incarcerated contacted the Marathon County Sheriff’s Department.[2] Sharon Roloff from the sheriff’s department confirmed that a criminal complaint and arrest warrant for Onheiber had been issued. Following the phone call, Roloff sent a fax transmittal of the arrest warrant and attached complaint. The fax cover page stated: “Copy of Onheiber warrant for your file. No detainer placed at this time. Please send ‘notify’ when appropriate.”
¶4 Approximately two weeks later,
¶5 Onheiber’s attorney[3] averred that from June 2006 through November 2007 he attempted to resolve the pending charges with the district attorney’s office, but was unsuccessful due to the office’s workload and failure to communicate with him. In late November 2007, after Onheiber was informed the prison would not send his documents,[4] he mailed a “Written Notice of Place of Imprisonment and Request for Final Disposition of Complaint Pursuant to [Wis. Stat. § 976.05].” The notice was filed with the circuit court on November 27, 2007. On May 30, 2008, Onheiber moved to dismiss the complaint because he had not been brought to trial within 180 days.
¶6 Following a hearing, the circuit court denied Onheiber’s motion in a written decision. The court concluded the 180-day timeline was never triggered because “a ‘detainer’ within the meaning of Wis. Stat. § 976.05 was never lodged ....” Onheiber appeals and, because he is due to be released from prison on December 25, 2009, we granted his motion to expedite our determination of his appeal.[5]
DISCUSSION
¶7 In
on the basis of which a detainer has been lodged against the prisoner, the prisoner shall be brought to trial within 180 days after the prisoner has ... delivered to the prosecuting officer and the appropriate court ... notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the ... complaint ....
¶8 The dispute in this case centers on whether the nationwide
arrest warrant constituted a “detainer” under the Interstate Agreement on
Detainers. This presents a question of
law that we determine independently of the circuit court.
¶9 Although “detainer” is not defined by statute, the courts
have “defined a detainer as 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.’”
Eesley, 225
¶10 Onheiber argues, and we agree, a detainer existed after Roloff verbally confirmed the existence of the criminal complaint and nationwide arrest warrant and then faxed to the prison the warrant and complaint with a request for notification prior to Onheiber’s release. Indeed, the subsequent detainer action letter to the sheriff’s department acknowledged the prison was aware of the charges, the arrest warrant, and the department’s request for notification prior to Onheiber’s release, and indicated the prison’s “records have been noted.” Additionally, the notice and request for disposition Onheiber provided to the circuit court and district attorney’s office included a multi-page printout from the prison giving details of Onheiber’s term of imprisonment.[7] The printout included a section titled “Current Notifies,” which listed the Marathon County Sheriff’s Department and noted under “Remarks”: “Outstanding warrant for pending charges – marijuana.”
¶11 We fail to see how the foregoing could possibly not demonstrate “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.” Indeed, we recently referred to a nationwide arrest warrant interchangeably as a detainer. See Tarrant, 772 N.W.2d 750, ¶3.
¶12 Nonetheless, the State argues the nationwide arrest warrant should not be considered a detainer because the prison learned of it indirectly, and because the warrant is similar to a writ of habeas corpus ad prosequendum, which was determined in Eesley not to constitute a detainer.
¶13 We reject the notion that how a prison first learns of a warrant or pending charges has any bearing on whether a detainer has been lodged.[8] What matters is whether a notification satisfying the definition of a detainer is filed. Here, the sheriff’s department confirmed the existence of the nationwide arrest warrant and pending charges, and then faxed copies directly to the prison.
¶14 We also reject the State’s argument that a nationwide arrest
warrant is similar in intent and effect to a writ of habeas corpus ad
prosequendum (writ). In Eesley,
225
¶15 More importantly, Eesley focuses on the detrimental
effects of detainers, which are absent in the case of the temporary writ.
¶16 We set forth in Tarrant a number of detrimental effects that the Interstate Agreement on Detainers was intended to prevent or lessen:
The inmate is (1) deprived of an opportunity to obtain a sentence to run concurrently with the sentence being served at the time the detainer is filed; (2) classified as a maximum or close custody risk; (3) ineligible for initial assignments to less than maximum security prisons (i.e., honor farms or forestry camp work); (4) ineligible for trustee status; (5) not allowed to live in preferred living quarters such as dormitories; (6) ineligible for study-release programs or work-release programs; (7) ineligible to be transferred to preferred medium or minimum custody institutions within the correctional system, which includes the removal of any possibility of transfer to an institution more appropriate for youthful offenders; (8) not entitled to preferred prison jobs which carry higher wages and entitle those holding them to additional good time credits against their sentences; (9) inhibited by the denial of possibility of parole or any commutation of his sentence; [and] (10) caused anxiety and thus hindered in the overall rehabilitation process since he cannot take maximum advantage of his institutional opportunities.
Tarrant, 772 N.W.2d 750, ¶18
(citing 2 Michael B. Mushlin, Rights of
Prisoners § 10.20 at 376 (3d ed. 2002); Cooper v. Lockhart,
489 F.2d 308, 314 n.10 (8th Cir. 1973)); see also Eesley, 225
¶17 In his affidavit to the circuit court, Onheiber averred that because of the detainer filed at the prison he: was denied a request for outside employment in the community service program; was denied a request for transfer to the federal prison camp in Oxford, Wisconsin, to be closer to his two children; lost his community custody, which is the lowest level of custody and would have permitted him to attend outside doctor appointments; was informed he might be transferred to more secure custody; lost his eligibility for furlough; was told he might lose eligibility for transfer to a halfway house under the “Second Chance Bill”; and, as a result, had a diminished rehabilitative attitude. In his appellate brief, Onheiber further asserts, without objection from the State, that other similarly situated inmates are being given at least six-month halfway house allotments under the Second Chance Act of 2007.[9]
¶18 Additionally, in his motions to this court, Onheiber represented he would be subject to being held more securely, “in the hole,” at the end of his prison term because of the detainer; he has arranged for employment following his release from prison, which would be inhibited by the detainer; and, upon release from prison, or transfer to a halfway house should he prevail in this appeal, he intends to seek immediate surgery at the VA hospital in Madison, Wisconsin, for a documented, painful medical condition.[10] Had the Interstate Agreement on Detainers been complied with in this case, any detrimental effects of the detainer on Onheiber would have been diminished or absent.
¶19 The State cannot file a detainer but then circumvent the requirements of the Interstate Agreement on Detainers by simply informing prison officials the State does not want the detainer to be called a detainer. Such a result would be farcical. Given that the facts of this case fit precisely within the established definition of a detainer, and given the State’s knowledge of the continuing and irreversible detrimental effects of the detainer on Onheiber, the State’s position in this case is unfortunate. The district attorney and attorney general are:
the representative[s] not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
Nelson
v. State, 59
By the Court.—Order reversed and cause remanded with directions; arrest warrant/detainer quashed.