Petition for Writ of Certiorari — Petrozziello v. Massachusetts

= aay > = — - ei ee

-

: | Court US. 3

gg -14h a

YUL 3% 1996

| JOSEPH F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

RALPH J. PETROZZIELLO,

PETITIONER

Ve

COMMONWEALTH of MASSACHUSETTS

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

EARLE C. COOLEY

COOLEY, MANION, MOORE

& JONES, P.C.

RUSSIA WHARF WEST

530 ATLANTIC AVENUE

BOSTON, MASSACHUSETTS 02210

(617) 542-3700

Attorney for the

Petitioner

Ralph J. Petrozziello

~ wow,

ee

Question Presented for Review

l. Whether the Interstate Agree-

ment on Detainers requires the dismissal

of pending indictments when a receiving

state returns the prisioner to the send-

ing state without having disposed of all

the indictments pending against the pris- )

oner in the receiving state?

Parties to the Proceeding Below

All parties appear in the caption of

the case.

Table of Contents

pathawitiee® 3 «a 6 4 6s ae ew 2 Oe eee

Opinions Below . .« « «+ «+ © © © © © * & ei

guvie@iction . . + « « « #6 seo* Seuss

Statute Involved . ..«+s«+s«+s«s«e+«+# « «3

Statement of the Case ...-+--+ ++ 3

Reasons for Granting Writ ....-.-. .10

I. The Court's Incorrect Appli-

cation Of The Interstate

Agreement Has Nationwide

Significance . ...++.-- - 10

Conclusion e e 7 e © o * * e e e o e o 20

Appendix o 2 o e eo s e e e e . ce s e -A-l

& f

Table of Authorities

I. Cases.

Malone v. United States, 482 A.2d

768, i DaGe 1984). > + e + +. o 4 + 2 oF

Massachusetts v. Petrozziello, 22

Mass. App. Ste The oor, N.E.2d sigs rev.

den., 397 Mass 1102 (1986)... .1, 11

Romans v. District Court, 633 P.2d

S aaannnEeEiaEn

Bee Sawa. BUELL OmM DANG). »« « « © « 19

United States v. Ricketson, 498 F.2d

367 (7th Gar. 1974). . ° « 8 ~-15-16, 17

United States v. Schrum, 504 F. Supp.

23 (D. Kan 1980), aff'd, 638 F.2d

wee Seem Gas SOUL) 2 6 « 0 © et ew el?

United States v. Sorrell, 413 F. Supp.

138 (E.D. Pa 1976), aff'd, 562 F.2d

227 (3rd Cir. 1977), cert. denied,

De POC RUPO Ps 5 a « sl lle LS, 17

II. Statutes

‘Interstate Agreement on Detainers Mass.

Gen. Laws ch. 276 App. et seq. (19706).

III

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

RALPH J. PETROZZIELLO

PETITIONER,

Ve

COMMONWEALTH OF MASSACHUSETTS

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH of MASSACHUSETTS

The Petitioner, Ralph J. Petrozziello

("Petrozziello"), respectfully prays that

a writ of certiorari issue to review the

judgment of the Supreme Judicial Court of

the Commonwealth of Massachusetts entered

in the case of Commonwealth v. Raliph J.

Petrozziello on May 30, 1986.

Opinions Below

On September 6, 1984, the Superior

Court of the Commonwealth of Massachusetts

(Pierce, J.) denied Petrozziello's Motion

to Dismiss Indictments pending against him

in Suffolk County. Petrozziello'’s Motion

was based on the fact that he had been

improperly returned to federal custody

before all pending state charges had been

disposed of. Because of the novelty and

importance of the legal issue presented

by this case, the Superior Court reported

the question to the Appeals Court pursu-

ant to Mass. R. Crim. P. 34

On April 15, 1986, the Appeals Court

affirmed the trial court's denial of

Petrozziello's Motion to Dismiss and is-

sued an opinion.

On May 30, 1986, the Supreme Judici-

al Court denied Petrozziello's Motion for

Further Appellate Review exhausting all

remedies available to Petrozziello in the

Commonwealth.

Jurisdiction

The judgment of the Supreme Judicial

Court was entered on May 30, 1986. The

a

jurisdiction of this Court is invoked

under 28 U.S.C. 1259.

Statute Involved

l. Interstate Agreement on Detainers,

Mass. Gen. Laws ch. 276 App. et. seq.

(1970).

Statement Of Facts

On October 10, 1979, the defendant,

Ralph J. Petrozziello, was indicted on

charges of first degree murder and armed

robbery. On December 3, 1979, the

Suffolk County District Attorney's office

applied for a federal flight warrant. On

December 5, this warrant together with

the original warrant for the defendant's

arrest on the murder and robbery charges

was delivered to the F.B.I. On August 5,

1983, the defendant was arrested in

Huron, Ohio, and taken into federal cus-

tody pursuant to the federal flight war-

rant and a federal parole violation war-

rant issued September 26, 1979. On August

8, 1983, the federal parole violation

warrant was lodged against the defendant

at F.C.I. Milan, Michigan, where he was

being held.

On August 9, 1983, Lieutenant

Robert Hudson, acting on behalf of the

Suffolk County District Attorney's Of-

fice, sent a detainer letter to F.C.I.

Milan, Michigan. Lieutenant Hudson re-

ceived a reply on August 1l, 1983 stating

that the detainer had been lodged against

Petrozziello and that a tentative release

date would be set as soon as Petrozziello

had arrived at his desiqnated institu-

tion.

On September 22, 1983 the defendant

was transferred to F.C.I. Danbury,

Connecticut where he was held until he

was transferred to the New Hampshire

State Prison. He was held in New Hamp-

shire State Prison pursuant to an agree-

ment between New Hampshire and the feder-

al government which permitted federal

prisoners to be lodged there.

On December 7, 1983, Petrozziello

submitted an Inmate Request Slip to his

counsellor at New Hampshire State Prison

requesting that he be informed of and

provided with copies of all detainers

which had been lodged against him. His

counsellor responded that he would not

receive the information he had requested

until after his parole revocation hear-

ing. On December 27, 1983, counsel for

the defendant sent a letter to the

Suffolk County District Attorney request-

ing that the defendant be arraigned as

soon as possible and that a trial date be

set.

At this point, charges were pending

against Petrozziello in several Massachu-

setts counties including Berkshire,

Suffolk and Plymouth. The various dis-

trict attorneys agreed that Petrozziello

would first be tried in Berkshire and,

upon completion of that trial, he would

be transferred to the other counties

which had outstanding indictments against

him.

On January 6, 1984, Daniel Ford,

Assistant District Attorney of Berkshire

County, filed a Petition for a Writ of

Habeas Corpus. When the petition was

presented to the U.S. Marshall's office

in Boston, Deputy Ford was informed it

would not be honored until ail federal

matters were resolvec.

Being unable to obtain custody of

Petrozziello by Writ of Habeas Corpus,

Ford then filed a request for temporary

custody pursuant to Section IV of the

Interstate Agreement.

It was not until January 9, 1984,

that Petrozziello was informed of the

detainer lodged against him by the Berk-

shire County District Attorney's Office.

OE te A Mas. ti BAN DIN ong ith 0m x

Shortly after learning of the Berkshire

County detainer, Petrozziello requested a

speedy disposition of the Berkshire Coun-

ty charges.

On January 24, 1984 Petrozziello was

transferred from federal custody to state

custody and was held for trial in Berk-

shire County. When he transferred custo-

dy of Petrozziello to the Berkshire Coun-

ty prosecutor, the United States Marshall

advised him that Petrozziello was not to

be released on bail and was not to be

returned to federal custody until all

state charges had been disposed of.

Thereafter,the Berkshire County District

Attorney formally notified his fellow

prosecutors in the other counties that

Petrozziello had to be tried on all pend-

ing state charges before he was returned

to federal custody under the provisions

of the Interstate Agreement. On January

26, 1984, Petrozziello was arraigned in

~_ =

Berkshire County on armed robbery charges

and on January 30, 1984, he was arraigned

in Suffolk County on first degree murder

and armed robbery charges. On March 13,

1984 the United States Parole Board re-

voked defendant's federal parole.

Petrozziellio was tried in Berkshire

County in late March, 1984. On April 6,

1984, he was found not guilty on all

charges.

According to Assistant District

Attorney Ford, he and his office were

"paralyzed" by the defendant's acquittal.

Instead of assuring that Petrozziello was

properly transferred to the custody of

the prosecutors in Suffolk County, Ford

left the transfer to a Massachusetts

State Trooper assigned to Ford's office.

The Trooper returned Petrozziello to fed-

eral custody and advised Ford of his ac-

tions. Petrozziello was in federal cus-

tody as of April 10. The Suffolk County

Hab ak

District Attorney did not learn that

Petrozziello haa been returned to federal

custody until April 12, 1984, when de-

fense counsel apprised them of the mis-

taken transfer.

On May 8, 1984, the federal author-

ities advised Suffolk County that

Petrozziello's tentative release date was

July 30, 1984.

On or about May 10, 1984, the de-

fendant filed a Motion to Dismiss the

Suffolk Indictments on the grounds that

the Commonwealth's violation of the

Interstate Agreement by returning him to

federal custody mandated dismissal.

On September 6, 1984, the court denied

Petrozziello's Motion to Dismiss but re-

ported the question to the Appeals Court

since the issue obviously was of nation-

wide significance. On April 15, 1986,

the Appeals Court affirmed the trial

court's denial of the Motion to Dismiss

and the Supreme Judicial Court refused to

grant further appellate review.

REASONS FOR GRANTING WRIT

The Court's Incorrect Application of

The Interstate Agreement Has Nationwide

Significance.

The petitioner, Ralph Petrozziello,

stands charged of first degree murder and

armed robbery. He was transferred from

federal to state custody to answer

charges pending in at least three sepa-

rate Massachusetts counties -- Berkshire,

Suffolk, and Plymouth.

The prosecutors in those three coun-

ties agreed that Petrozziello should

first be tried in Berkshire County. He

was tried there and acquitted. The ac-

quittal was such a shock to the Berkshire

District Attorney that he mistakenly re-

turned Petrozziello to federal custody

rather than transferring him to the cus-

tody of the Suffolk County District

Attorney as required. When the Berkshire

atG=

il ct aa ay henge

County District Attorney returned

Petrozziello to federal custody, he vio-

lated Petrozziello's rights under the

Interstate Agreement. Accordingly,

Petrozziello promptly sought dismissal of

the Suffolk charges since further prose-

cutions in Massachusetts were barred by

the Interstate Agreement.

At the hearing on the Motion to Dis-

miss and on appeal, the Commonwealth con-

ceded that the Interstate Agreement had

been violated but argued that dismissal

was not required. The Appeals Court con-

curred:

We do not think that the

drastic sanction of dis-

missal of first degree

murder and armed robbery

charges should apply where

the defendant's return to

federal custody was_ the

result of a mistake.

Massachusetts v. Petrozziello, 22 Mass

App. Ct. 71, 80 (1986).

The Court should review this deci-

oli-

sion because it is clearly contrary to

the plain language of the Interstate

Agreement which requires dismissal when-

ever a violation occurs. If this deci-

sion is not reversed, it will be utilized

as precedent by prosecutors nationwide to

justify any and all violations of the

Interstate Agreement. Such a result was

clearly not intended by Congress and the

States which are parties to the Agree-

ment.

This petition presents a narrow

legal issue: whether upon finding a vio-

lation of the Interstate Agreement a

court has the discretion to ignore the

Agreement's mandatory dismissal provi-

sions. It is clear from the Agreement

itself that courts have no such discre-

tion and that, upon finding a violation

of the Agreement, the court must dismiss

all untried charges or indictments.

The starting point for analyzing

ai Ba

ae

this issue must be the language of the

Agreement itself. Article III(d), gov-

erning prisoners requests for disposi-

tion, as well as article IV(e) and V(c)

mandate dismissal when a= prisoner's

rights have been violated. Article

IV(e), for example, is plain:

If trial is not had on any

indictment, information or

complaint contemplated

hereby prior to the pris-

oner's being returned to

the original place of im-

prisonment pursuant to

Art. V(c) hereof, such

indictment, information or

complaint shall not be of

any further force of ef-

fect, and the Court shall

enter an order dismissing

the same with prejudice.

It is undisputed that "trial was not

had" on the Suffolk Indictments prior to

returning Petrozziello to his original

place of imprisonment (federal custody).

The Agreement provides one and only one

remedy when such a mistake occurs: dis-

missal with preiudice of the untried

«13<

indictments. The Act does not authorize

courts to fashion less drastic remedies

or to evaluate whether the mistaken

transfer actually had an adverse impact

on the prisoner's rehabilitation. More-

over, dismissal is mandated regardless of

whether the original transfer was pursu-

ant to Article III, pursuant to a pris-

oner’s request, or Article IV, pursuant

to a prosecutor's request for temporary

custody.

The Appeals Court has ruled that

dismissal is not required unless’ the

prisoner's rehabilitation has been actu-

ally affected. In so ruling, the Court

has ignored the Agreement’s plain lan-

guage and substituted its judgment for

that — and the party states.

The position adopted by the Appeals

Court has been rejected elsewhere. In

United States v. Sorrell, 413 F. Supp.

138 141 (E.D. Pa. 1976), aff'd, 562 F.2d

227 (3d Cir. 1977), the violation in-

volved the transfer of the defendant from

state to federal custody for arraignment

and his return to the sending state on

the same day. In arguing that such a de

minimis violation of the Agreement did

not warrant dismissal of the federal

charges, the Government relied upon the

fact that the prisoner's rehabilitation

could not have been negatively affected

by the wrongful transfer. The Court

rejected such thinking:

Admittedly, there may be

minimal interruptions of

the rehabilitative process

by a one day trip from

Graterford [state prison]

and return. However, Con-

gress was not dealing with

an individual situation,

but rather with an Agree-

ment of national scope...

Congress could have writ-

ten limitations into the

Agreement. Again, it did

not. And again, it is not

for us to legislate.

Id. at 141.

Similarly, in United States v.

Ricketson, 498 F. 2d 367, 373 (7th Cir.

1974), the Seventh Circuit explicitly

held that neither the length of the mis-

taken transfer nor its de minimis nature

excuses a violation of the Agreement:

But there are no excep-

tions to the requirement

that defendant not be

returned to state custody

untried.

The Appeals Court apparently felt

that the serious nature of the pending

charges (murder and armed robbery) and

the fact that there was no evidence that

Petrozziello's rehabilitation had _ been

adversely affected by the improper trans-

fer were factors which permitted the

Court to ignore the mandatory dismissal

language. If this were so, the Inter-

state Agreement would be emasculated and

courts would be free to ignore the remedy

provided by the statute and fashion their

Own remedies on a case-by-case basis.

Had Congress and the party states in-

-16-

ee ee ee eee ee ee

tended to confer such discretion on the

judiciary they would have done so.

United States v. Sorrell, 413 F. Supp.

138, 141 (E.D. Pa 1976), aff'd, 562 F.2d

227 (3d Cir. 1977).

The Appeals Court did not cite any

federal case which justified its novel

interpretation of the Interstate Agree-

ment. Indeed, the only case the court

relied upon to justify ignoring’ the

Agreement's plain language is Malone v.

United States, 482 A.2d 7768, 771 (D.C.

1984), issued by the District of Columbia

Court of Appeals. Malone, however, is of

little weight when compared to those

federal cases such as Sorrell and

Ricketson which hold that the Agreement's

mandatory dismissal provisions must be

followed. As the District of Kansas

succinctly stated in United States v.

Schrum, 504 F. Supp 23, 25 (D. Kan.

1980), aff'd, 638 F.2d 215 (10th Cir.

@l17o

1981):

[The Act] can still be

read to stand for the

proposition that once the

Act is applicable its

commands must be followed

precisely.

Here, there is no question that the

Interstate Agreement was applicabie and

that its commands were not’ followed.

Accordingly, it is abundantly clear that

the Appeals Court decision is incorrect

as a matter of law and will stand as a

dangerous precedent and a panacea to

prosecutors unless reversed by this

Court.

Moreover, in requiring a prisoner to

show an adverse impact on his rehabilita-

tion as a condition precedent to his

rights under the Agreement the Appeals

Court has mistakenly shifted the burden

of complying with the Agreement from the

party states to the prisoner.

However, it is well settled that the

-18-

party states bear the burden of demon-

strating compliance:

The purpose of the Agree-

ment requires that adverse

consequences of official

oversights be visited upon

the prosecution, not the

prisoner. Only in this

way can the goals of the

Agreement be achieved by

requiring the officials

concerned to learn of

their duties under- the

Agreement and perform them

conscientiously.

Romans v. District Court [In and For

Eighth Judicial District, 633 P. 2d 477,

481 (Colo. 1981)(en banc).

The rule of law articulated by the

Appeals Court relieves the prosecution

from the burden of complying with the

Agreement since they will experience no

adverse consequences as a result of their

non-compliance. This is contrary to the

Agreement's overall structure and opera-

tion and has the potential of spawning

serious further abuses.

~)9-

Conclusion

For all the foregoing reasons, the

Petitioner requests that his petition be

granted.

Respectfully Submitted

Earle C. Cooley

Cooley, Manion, Moore &

Jones, P.C.

Russia Wharf West

530 Atlantic Ave.

Boston, MA 02210

(617) 542-3700

Attorney for the

Petitioner

Ralph J. Petrozziello

-70—

a _ “

APPENDIX

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

NOS. 027971,

027972

COMMONWEALTH

vs.

RALPH J. PETROZZIELLO

FINDINGS OF FACT AND

RULINGS OF LAW ON ~

DEFENDANT'S MOTION TO DISMISS

The issue presented in this case is

should the instant indictments be dis-

missed because of the failure of the

Commonwealth to follow the prerequisites

of the Interstate Agreement on Detainers.

For the reasons expressed below, I find

that the Agreement does not apply and

rule, therefore, the defendant’s motion

must be denied.

(1) On May 24, 1974, Boston Police

Officer Donald A. Brown was shot and

killed during the course of an armed

robbery of the Purity Supreme Supermarket

in Roslindale. (Stipulation of the

parties).

(2) On October 10, 1979, the defen-

dant was indicted for first degree murder

of Donald A. Brown and armed robbery.

(Stipulation of the parties).

(3) On December 3, 1979, the

Suffolk County District Attorney's Office

ae applied for a federal flight

warrant against the defendant. (Stipula-

tion of the parties).

(4) On December 5, 1979, the war-

rant described in paragraph 3 wa- deliv-

ered to the F.B.I. together with the

Original warrant for the defendant's

arrest on charges of murder and armed

robbery. (Stipulation of the parties).

(5) On August 5, 1983, the defen-

dant was arrested in Huron, Ohio, and

taken into federal custody pursuant to

the federal flight warrant and a federal

parole violation warrant issued September

A-2

26, 1979. (Stipulation of the parties.)

(6) On August 8, 1983, the federal

parole violation warrant was lodged

against the defendant at FCI Milan,

Michigan, where he was being held.

(Stipulation of the parties.)

(7) On August 9, 1983, Lieutenant

Detective Robert Hudson sent a letter and

detainer along with the defendant's

photograph and fingerprints to FCI Milan,

Michigan, where the defendant was being

held. (Stipulation of the parties.)

(8) On August 1l, 1983, a detainer

action letter was sent to Lieutenant

Detective Robert Hudson from the Federal

Correctional Institution in Milan,

Michigan. The letter indicated that the

detainer had been received and filed

against the defendant and that he was

currently a marshall’'s holdover at that

facility awaiting movement to his as-

Signed Federal Institution. It was

A-3

further indicated that the detainer would

be forwarded along with the defendant and

Lieutenant Hudson would receive a tenta-

tive release date shortly after the de-

fendant’s arrival at his designated in-

Stitution. (Stipulation of the parties.)

(9) On August 15, 1983, the defen-

dant had a preliminary interview before a

U.S. Probation Officer and on August 16,

1983, the interviewer made a recommenda-

tion to the U.S. Parole Commission that

probable cause be found as to Charge 1

and Charge 2 of his alleged federal

parole violations. (Stipulation of the

parties.)

(10) Between August 8, 1983 and

September 22, 1983, the defendant re-

mained at FCI Milan, Michigan, pursuant

to the federal parole violation warrant.

(Stipulation of the parties.)

(11) On September 22, 1983, the

defendant was transferred from FCI Milan,

A-4

Michigan, to FCI Danbury, Connecticut.

(Stipulation of the parties.)

(12) On or about September 29, 1983,

the defendant arrived in New Hampshire

and was held in federal custody at New

Hampshire State Prison pursuant to an

agreement between the Federal Authorities

and the State of New Hampshire allowing

federal prisoners to be lodged at that

institution. (Stipulation of the par-

ties.)

(13) A federal parole violation

hearing was scheduled for November 8,

1983, and January 11, 1984, but on each

occasion, the hearing was continued at

the request of the defendant. The de-

fendant states that at the time he re-

quested continuances, that he was seeking

additional discovery. (Stipulation of

the parties.)

(14) On or about December 2, 1983,

counsel for the defendant wrote to the

A-5

Suffolk County District Attorney request-

ing that the defendant be arraigned as

soon as possible and that a trial date be

set. Similar letters were sent to the

District Attorneys of Plymouth, Middle-

sex, and Berkshire Counties. (Stipula-

tion of the parties.)

(15) The letter described in para-

graph 3 was mailed on December 27, 1983,

and was received by the District Attor-

ney's Office on December 28, 1983.

(Stipulation of the parties.)

(16) On December 7, 1983,

Petrozziello submitted an Inmate Request

Slip to his counsellor at New Hampshire

State Prison requesting that the U.S.

Marshall be contacted for copies of all

detainers lodged against him. On Decem-

ber 12, 1983, Petrozziello was informed

that he would be advised at his Parole

Revocation hearing as to "who has what on

you” (Stipulation of the parties.)

A-6

(17) On December 30, 1983, Assistant

District Attorney Daniel Ford wrote to

New Hampshire State Prison authorities

requesting information as to how he might

obtain custody of Ralph Petrozziello for

purposes of arraignment: on the _ State

(Berkshire County) charges. (Stipulation

of the parties.)

(18) On January 6, 1984, Berkshire

County Assistant District Attorney Daniel

A. Ford, filed a Petition for a Writ of

Habeas Corpus Ad Defendum. The Petition

was allowed that day by Simons, J. and

the Habe sent to the U.S. Marshall's

Office in Boston. (Stipulation of the

parties.)

(19) On or about January 6, 1984,

Assistant District Attorney, Daniel A.

Ford, was informed by the U.S. Marshall's

Office that they would not honor the Habe

(Stipulation of the parties.)

Bernard Stone, the Deputy U.S.

A-7

marshall, informed Mr. Ford that it was

the policy of the U.S. Marshall's Office

in Massachusetts not to turn over federal

prisoners awaiting federal action to

state authorities under a Habe until all

pending federal matters were resolved.

Pending resolution of Mr. Petrozziello's

federal matters, Mr. Ford was told that

only a request under the _ Interstate

Agreement on Detainers would be honored.

(20) In this case, all relevant

parties (the U.S. Marshall's Office, all

Massachusetts’ District Attorney's of-

fices, personnel at both the Berkshire

and Suffolk County houses of correction

and involved members of the state police)

acted at all times in the belief that Mr.

Petrozziello was transferrred to state

custody under the terms of the Interstate

Agreement on Detainers.

(21) On or about January 9, 1984,

the Berkshire County District Attorney's

A-8

Siac aed

ASD PERDANA ice OD ID Dai

MoraaCiie

Office made a request for temporary cus-

tody ("Form v") of the defendant under

the Interstate Agreement on Detainers

(IAD) in order to bring the defendant to

trial on charges of armed robbery while

masked and the request was forwarded to

the New Hampshire State Prison on January

10, 1984. (Stipulation of the parties.)

(22) On or about January 9, 1984,

the prosecuting official, Assistant

District Attorney, Daniel A. Ford, com-

pleted Form VI under the IAD, which

authorized him to act for the receiving

state in taking custody of the defendant

in January of 1984, for trial in March of

1984. (Stipulation of the parties.)

(23) On January 9, 1984,

Petrozziello was informed for the first

time of the detainer lodged against him

by the Berkshire County District Attor-

ney's Office, and on January 17, 1984, he

submitted an Inmate Request Form request-

A-9

ing final disposition of the Berkshire

charges. (Stipulation of the parties.)

(24) I find that the provisions of

both Articles III and IV of the Agreement

were triggered in this case.

The District Attorney's Office in

Berkshire County made its request for

temporary custody under Article IV;

however, since Mr. Petrozziello submitted

an inmate request for final disposition

under Article III on January 17, he was

not advised of his right "to contest the

legality of his delivery” as required by

Article Iv(a) and (d). Nor did the

federal authorities wait "a period of

thirty days after receipt” of the request

for temporary custody before it was

"honored." Article IV(a).

(25) On January 24, 1984,

Petrozziello was transferred from Federal

custody to the custody of Berkshire

County, Massachusetts. The United States

A-10

Se a ee

Marshall instructed Berkshire County

officials that Petrozzieilo was not to be

released on bail and was not to be re-

turned to the Marshall until the State is

finished with him. Petrozziello was held

at the Berkshire County House of Correc-

tion. (Stipulation of the parties.)

(26) Before turning Mr. Petrozziello

over to Berkshire County, Deputy U.S.

Marshall Bernard Stone spoke to represen-

tatives both from Suffolk and from Berk-

shire Counties. He informed them that

Mr. Petrozziello was ready to be turned

over but left the choice of which county

would receive him first up to them. They

chose Berkshire. Hence, it was under-

stood by all appropriate officials in the

Berkshire County District Attorney's

Office at this time that following the

resolution of matters against Mr.

Petrozziello in that county he was to be

returned to Suffolk County for trial on

A-11

the instant indictments.

(27) Upon taking custody of

Petrozziello, the Berkshire County Dis-

trict Attorney notified every District

Attorney in Massachusetts that, under the

Interstate Agreement on Detainers,

Petrozziello had to be tried on all State

charges before he was returned to Federal

custody. (Stipulation of the parties.)

(28) On January 25, 1984, Detective

William DiGiuseppe mailed via Federal

Express a letter and exemplified copy of

the murder warrant to the Berkshire

County House of Correction to be lodged

as a detainer against the defendant.

(Stipulation of the parties.)

(29) On January 26, 1984, the defen-

dant was arraigned in Berkshire County on

charges of armed robbery while masked.

(Stipulation of the parties.)

(30) On or about Janaury 27, 1984,

the Department of Corrections transported

iia aaa

the defendant from Berkshire County to

the Charles Street Jail to hold the de-

fendant as a "safe-keep" inmate at the

request of the sheriff of Berkshire

County. (Stipulation of the parties.)

(31) On January 30, 1984, the

defendant was arraigned in Suffolk County

Superior Court on charges of first degree

murder and armed robbery and the order of

notice was read to him. (Stipulation of

the parties.) |

(32) On March 13, 1984, the United

States Parole Board détermined that the

defendant had violated the terms of his

parole and the Board revoked his federal

parole. (Stipulation of the parties.)

(33) On March 13, 1984, the defen-

dant was transferred back to the Berk-

shire County House of Correction. (Stip-

ulation of the parties.)

(34) On March 13, 1984, and March

15, 1984, pre-trial motions were heard in

A-13

the Berkshire County case. (Stipulation

of the parties.)

(35) On March 19, 1984, before trial

commenced, Petrozziello moved for dis-

missal of the Berkshire County indictment

on the ground that he had made a request

for final determination by his counsel's

letter of December 2, 1983, and by his

Inmate Request Slip of January 17, 1984;

that the Berkshire County District Attor-

ney's Office had delayed taking any

action to obtain temporary custody from

the date of the indictment, August 15,

1983, until January 1984, and that this .

violated Petrozziello’s rights under the

Intersate Agreement on Detainers. The

motion to dismiss was denied and trial

commenced on March 19, 19934. (Stipula-

tion of the parties.)

(36) From March 19, 1984 =- April 6,

1984, the defendant was tried in Berk-

shire County Superior Court on charges of

A-14

armed robbery while masked. (Stipulation

of the parties.)

(37) On April 6, 1984, the defendant

was acquitted on charges of armed robbery

while masked. (Stipulation of the par-

ties.)

(38) On April 10, 1984, State

Troopers Richard Smith and Robert Bradley

transported the defendant from the Berk-

shire County House of Correction to

Springfield, Massachusetts.

(39) I found that the return of Mr.

Petrozziello to federal custody on April

9 or 10 resultea from negligence by the

District Attorney's Office in Berkshire

County.

This finding is based on the follow-

ing. From the evidence presented, I

conclude that Mr. Petrozziello's acquit-

tal was both a surprise and a substantial

disappointment to the District Attorney's

Office in Berkshire County. A temporary

Ae-15

paralysis apparently prevailed in the

District Attorney's Office after the

jury's verdict was returned. Such an

atmosphere no doubt accounts for ‘the

following developments.

Major John Shaughnessy, the Director

of Security at the Berkshire House of

Correction, called First Assistant Dis-

trict Attorney Daniel Ford on the after-

noon of April 6. The jury was deliber-

ating at the time of the call. Mr. Ford,

the prosecutor in the Berkshire action

against Petrozziello, was out of his

office. Shaughnessy left a message

indicating that Ford should work out the

problems concerning Petrozziello'’s trans-

portation with the U.S. Marshall's Of-

fice. This message was not received by

Mr. Ford until after he learned of the

jury's disheartening (from his point of

view) verdict. He then turned the mes-

sage over to State Trooper Richard Smith

A-16

and told him to take care of it. Trooper

Smith was assigned to the D.A's office.

Smith then made a series of telephone

calls regarding Mr. Petrozziello'’s trans-

portation to Boston. His first call was

to Bernard Stone in the U.S. Marshall's

Office. Thereafter he made and received

calls from the Berkshire County House of

Correction. Finally, Trooper Smith

learned that Berkshire County correction

officials either could not or would not

transport inebcnuietic to Boston, so he

made arrangements with Bernard Stone to

turn Petrozziello over to Deputy US

Marshalls at the Federal Courthouse in

Springfield the following Monday. That

evening, April 6, Trooper Smith fully

apprised Mr. Ford of these arrangements.

During his testimony, Mr. Ford admitted

that he had been so advised; however, he

thought at the time, so he testified,

that the U.S. Marshalls were going to

A-17

transport Mr. Petrozziello back to Boston

to the Suffolk County District Attorney.

Instead, they transported Mr.

Petrozziello to Danbury from which he was

thereafter transferred to Louisberg.

(46) On April 10, 1984, at the U.S.

Marshall's Office in Springfield,

Troopers Smith and Bradley turned the

defendant over to Deputy U.S. Marshalis

Brendan Toolin, James Roche, and Paul

Ahearn. A prisoner receipt was given to

Troopers Smith and Bradley by Deputy U.S.

Marshall Roche (Stipulation of the par-

ties.)

(41) Between April 6th and 10th,

1984, the Suffolk County District Attor-

neys’ Office was not contacted at any

time by the U.S. Marshall's Office,

Berkshire County District Attorney's

Office, or the State Police regarding the

defendant’s custody, transportation, or

turnover from State to Federal authori-

A-18

ties. (Stipulation of the parties.)

(42) Between April 6th and 10th,

1984, the Suffolk County District Attor-

ney was not offered temporary custody of

the defendant for purposes of trial.

(Stipulation of the parties.)

(43) On or about April 12, 1984, the

Suffolk County District Attorney's Office

was notified for the first time, through

defense counsel, that the defendant had

been returned from the Berkshire County

House of Correction to Federai custody

and that the defendant was being held in

Federal custody. (Stipulation of the

parties.)

(44) On May 8, 1984, a Detainer

Action Letter was sent to Detective

William DiGiuseppe form the U.S. Peni-

tentiary at Lewisburg, Pennsylvania. The

letter indicated that the detainer had

been filed against the defendant and that

his tentative release date was July 30,

A-19

1984. (Stipulation of the parties.)

(45) On April 30, 1984, the Plymouth

County District Attorney lodged a detain-

er against the defendant on a 1979 Dis-

trict court complaint charging him with

armed robbery. The detainer was lodged

at the United States Penitentiary at

Lewisbury, Pennsylvania. (Stipulation of

the parties.)

(46) On May 9, 1984, FCI Lewisburg

sent a detainer action letter to the

Plymouth County District Attorney's

Office acknowledging the filing of the

detainer and supporting the defendant's

tentative release date as July 30, 1984.

(Stipulation of the parties.)

(47) On or about May 31, 1984, the

Plymouth County District Attorney's

Office filed a Form 5 request for tempo-

rary custody under the Interstate Agree-

ment on Detainers. Evidence of the

Plymouth County District Attorney's

A-20

authority to act for the receiving state

was filed on Form 6 on the same date.

Also on May 31, 1984, the Plymouth County

District Attorney filed a Form /7--

prosecutor's acceptance of temporary

custody. This form stated that it con-

stituted “prosecutor's acceptance of

temporary custody offered in connection

with a prisoner's request for disposition

of a detainer". (Stipulation of the

parties.)

(48) On July 18, 1984, the officials

at FCI Lewisburg wrote to Frances A.

McIntyre, Assistant District Attorney in

Plymouth County, stating that the defen-

Gant had appealed the request for tempor-

ary custody; that the appeal was reveiwed

and denied, and that prison officials

were enclosing an “offer to deliver

temporary custody", and “certificate of

inmate status” as required by the Inter-

State Agreement on Detainers. Assistant

A-21

District Attorney McIntyre was requested

to forward Form 6 advising the time and

date that the Plymouth County District

Attorney intended to return the defendant

into his jurisdiction. (Stipulation of

the parties.)

(49) On or about May 10, 1984, the

defendant filed a Motion to Dismiss the

Suffolk indictments on the ground that

the prosecution was barred by the Inter-

state Agreement on Detainers.

Rulings of Law

l. Any of the foregoing findings of

fact which should more properly be con-

sidered rulings of law;

2. The Commonwealth of Massachusetts

and the United States are both parties to

the Interstate Agreement on Detainers.

St. 1965 c. 892 sect. 1; Pub. L. No.

91-538, sects.1-8, 84 Stat. 1397-1403

(1970);

3. Article III of the Agreement pre-

A-22

scribes the procedures by which a pris-

oner "serving a term of imprisonment" may

obtain a speedy disposition of charges

pending in another jurisdiction against

him. See G.L. c. 276 app. Art. III at

262;

4. Article IV of the Agreement pre-

scribes the procedure by which a prose-

cuting officer in a state may obtain

temporary custody of a prisoner "serving

a term of inprisonment" in another state.

See GL. C. 276 app. Art. IV at 263;

5. One of the protections which the

Agreement provides to a detainee is that

all charges pending in a receiving state

be dismissed if the detainee is returned

to the sending state by the receiving

State before it has resolved all of the

outstanding charges pending therein

against the detainee. This protection

exists irrespective of whether the de-

tainee is transferred pursuant to Article

A-23

III or Article IV. See Article III (d)

and Article IV (e);

6. The provisions of the Agreement

apply only to a prisoner "serving a term

of imprisonment." On January 24, 1984,

defendant was not "serving a term of

imprisonment" within the meaning of the

Agreement; accordingly, the Agreement

does not apply to the circumstances of

this case.

This ruling is based on the

following:

A. The Agreement is intended to

apply only to prisoners who are serving

time within a correctional institution;

B. Those awaiting a parole revoca-

tion hearing are not serving time within

a correctional institution within the

terms of the Agreement, United States v.

Dobson, 585 F2d 55, 61 (3rd Cir. 1978).

7. The fact that defendant's parole was

revoked while he was in Massachusetts did

A-24

not transform the circumstances of his

transfer to apply under the Agreement.

It still did not apply to the January 24,

1984 transfer of defendant to _ state

custody. This follows because the pur-

poses of the Agreement were not disturbed

by defendant's transfer. See United

States v. Mauro, 436 U.S. 340, 359

(1978).

Defendant's motion to dismiss is

hereby denied.

By the Court,

Rudolph F. Pierce

Justice of the

Superior Court

A-25

Commonwealth vs. Ralph J. Petrozziello,

Further Appellate Review Denied, 397

Mass. 1102.

Commonwealth vs. Ralph J. Petrozziello

Suffolk. March 10, 1986 - April 15, 1986

Present: Greaney, C.J., Kaplan, &

Dreben, JJ., 22 Mass. App. Ct. 7l.

A-26

Interstate Agreement on Detainers.

Practice, Criminal, Defendant in custody

of another jurisdiction, Detainer. Words,

"Term of imprisonment."

A prisoner in Federal custody await-

ing parole revocation proceedings who was

brought into the Commonwealth pursuant to

a detainer against him on August 9, 1983,

by the district attorney for the Suffolk

District in accordance with the Inter-

State Agreement on Detainers; whose pa-

role was revoked by Federal authorities

on March 13, 1984; and who, after having

been transferred to the temporary custody

of the district attorney for the Berk-

shire District and tried from March 19,

1984, through April 6, 1984, on a sepa-

rate indictment, was acquitted and, by

mistake, returned to federal custody

without any disposition being made of the

Suffolk indictments, was not entitled

A-27

thereby to dismissal of those indictments

under art. III(a) and (d) of the agree-

ment on the grounds that the 180 day time

limitations for bringing him to trial had

been exceeded where, since the relevant

time period commenced on March 13, 1984,

the date when his parole was revoked and

he “entered upon a term of imprisonment,”

and since the period was tolled for the

Berkshire trial, only 40 days had elapsed

at the time he filed his motion to dis-

miss the Suffolk indictments on May 10,

1984. [ J

A prisoner in Federal custody await-

ing parole revocation proceedings who was

brought into the Commonwealth pursuant to

the lodging of a detainer against him by

the district attorney for the Suffolk

District in accordance with the Inter-

state Agreement on Detainers, and who,

after being transferred to the temporary

custody of the district attorney for the

A-28

Berkshire District for trial on a sepa-

rate indictment, was acquitted and, by

mistake, returned to Federal custody

without any disposition having been made

of the Suffolk indictments for first de-

gree murder and armed robbery, was not

entitled thereby to dismissal of those

indictments under arts. III (d), IV (e)

and V (c) of the agreement on the ground

that he was returned to Federal custody

before the charges underlying the Suffolk

County detainer had been tried, where

evidence in the record indicated that the

district attorneys in question had in-

tended to comply with the terms of the

agreement, that the prisoner’s return to

Federal custody was the result of a mis-

take, that the prisoner's rehabilitation

had not been adversely affected, and that

the purposes of the agreement had not

been violated. [ J

INDICTMENTS found and returned in

A-29

the Superior Court Department on October

ll, 1979.

A motion to dismiss was heard by

Rudolph F. Pierce, J., and questions of

law were reported by him to the Appeals

Court.

Harry Le. Manion, III (John 8B.

Kinsellagh with him ) for the defendant.

Judy G. Zeprun, Assistant District

Attorney (Charles M. Campo, Jr., Special

Assistant District Attorney, with her)

for the Commonwealth.

GREANEY, C.J. The defendant moved

in the Superior Court to dismiss indict-

ments charging him with murder in the

first degree and armed robbery. He main-

tains that dismissal was required because

the Commonwealth had violated the Inter-

state Agreement on Detainers (Agreement),

to which both the Commonwealth (St. 1965,

A-30

c. 892, sec. 1) and the United States

(Pub. Le. No. 91-538, 84 Stat. 1397

[1970]) are parties. After an evidentia-

ry hearing, a judge of the Superior Court

denied the motion and reported the ques-

tion of the correctness of his ruling to

this court.+ See Mass. R. Crim. P. 34,

378 Mass. 905-906 (1979).

The facts were established by the

judge after an evidentiary hearing and

may be summarized as follows. On May 24,

1974, a Boston police officer was shot

and killed during an armed robbery of a

supermarket. On October 10, 1979, the

1- The report was intended to avert a

lengthy trial in the event the ruling on

the motion was found to be incorrect.

The report poses four questions con-

cerning the applicability of the Agree-

ment. We do not think it necessary to

labor over them and will instead consider

the correctness of the judge’s ruling in

light of the facts and the requirements

of the Agreement.

A-31

defendant was charged in two indictments

with the armed robbery and the first de-

gree murder of the officer. On December

S, 1979, the district attorney for the

Suffolk District obtained a flight

warrant against the defendant. This

Warrant was delivered to the Federal Bur-

eau of Investigation together with the

Original Suffolk warrant for the defen-

dant’s arrest. On August 5, 1983, the

defendant was taken into "ederal custody

pursuant to the flight warrant and a Fed-

eral parole violation warrant issued in

1979.°

On August 9, 1983 the Suffolk

District Attorney sent a detainer to the

Federal correctional institution in

Milan, Michigan, where the defendant was

Ze At the time, the defendant was al-

legedly in violation of his parole

from a federal sentence he was serv-

ing at the Federal Correctional In-

Stitution in Lewisburg, Pennsyl-

vania.

A-32

ee

incarcerated pending disposition of the

parole revocation ‘cipal ictaes

The defendant was thereafter moved,

on September 22, 1983, from Milan to the

Federal correction institution in Dan-

bury, Connecticut, and moved again, on

September 25, 1983, from Danbury to the

State prison in New Hampshire, where he

was held as a Federal etaubbie. Parole

violation hearings scheduled for November

8, 1983, and January 11, 1984 were con-

tinued at Petrozziello’s request.

On December 2, 1983, counsel for the

defendant requested by letter that the

Suffolk district attorney's office ar-

raign and try him as soon as possible on

the robbery and murder’ charges. On

December 7, 1983, the defendant requested

that the United States Marshall provide

him with copies of all detainers lodged

against him. He was told, on December

12th, that at his parole revocation hear-

A-33

ing he would be advised of "who has what

on you." On January 10, 1984, the dis-

trict attorney for the Berkshire District

formally requested temporary custody of

the defendant, pursuant to art. IV of the

Agreement, in order to try him on an in-

dictment for armed robbery while masked.

The defendant was informed of the Berk-

shire detainer, and on January 17, 1984,

requested, pursuant to art. III of the

Agreement, and disposition of all charges

against him.

On January 24, 1984, the defendant

was transferred to the custody of Berk-

shire County. Upon taking custody, the

district attorney there notified all Com-

monwealth district attorneys and under

the Agreement the defendant had to be

tried on all State charges before being

returned to Federal custody.

On January 26, 1984, he was

arraigned in the Superior Court in Berk-

A-34

Le

shire County on the armed robbery while

masked charge pending in that county and

arraigned on January 30, 1984, in the

Superior Court in Suffolk County on the

armed robbery and murder charges pending

here. On March 13, 1984, the United

States Parole Board revoked the defen-

dant’s parole. From March 19, 1984,

through April 6, 1984, he was tried be-

fore a jury in Berkshire County and

acquitted of the armed robbery while

masked offense. The defendant was then

returned to Federal custody on April 9th

or 10th as a result of a mistake on the

part of the district attorney's office in

Berkshire. The circumstances of that

transfer are more fully described in the

judge's findings as follows:

"I find that the return of

Petrozziello to Federal custody

on April 9 or 10 resulted from

negligence by the district

attorney's office in Berkshire

County.

"This finding is based on

A-35

the following. From the evi-

dence presented, I conclude

that Petrozziello’'s acquittal

was both a surprise and a sub-

stantial disappointment to the

district attorney’s office in

Berkshire County. A temporary

paralysis apparently prevailed

in the district attorney's of-

fice after the jury's verdict

was returned. Such an atmos-

phere no doubt accounts for the

following developments.

"Major John Shaughnessy,

the director of security at the

Berkshire house of correction,

called first assistant district

attorney Daniel Ford on the

afternoon of April 6. The jury

was deliberating at the time of

the call. Mr. Ford, the prose-

cutor of the Berkshire action

against Petrozziello, was out

of his office. Shaughnessy

left a message indicating that

Ford should work out the prob-

lems concerning Petrozziello’s

transportation with the United

States Marshal's Office. This

message was not received by Mr.

Ford until after he learned of

the jury's disheartening (from

his point of view) verdict. He

then turned the message over to

State trooper Richard Smith and

told him to take care of it.

Trooper Smith was assigned to

the district attorney's office.

Smith then made a series of

telephone calls regarding Mr.

Petrozziello's transportation

to Boston. His first call was

to Bernard Stone in the United

States Marshal's Office.

A-36

Thereafter he made and received

calls from the Berkshire County

house of correction. Finally,

trooper Smith learned that

Berkshire County correction

officials either could not or

would not transport

Petrozziello to Boston, so he

made arrangements with Bernard

Stone to turn Petrozziello over

to Deputy United States

Marshals at the Federal court-

house in Springfield the fol-

lowing Monday. That evening,

April 6, trooper Smith fully

apprised Mr. Ford of these

arrangements. During his tes-

timonyv, Mr. Ford admitted that

he had been so advised; how-

ever, he thought at the time,

so he testified, that the

United States Marshals’ were

going to transport Mr.

Petrozziello back to Boston to

the Suffolk County district

attorney. Instead, they trans-

ported Petrozziello to Danbury,

from which he was thereafter

transferred to Lewisburg."

The district attorney in Suffolk was

not notified of the defendant's transfer

at any time between April 6th and 10th,

but first learned of the defendant's re-

turn to Federal custody on April 12,

On May 10, 1984, the defendant's

counsel filed this motion to dismiss the

A-37

Suffolk indictments on the ground that

the Agreement had been violated.

The defendant alleges two violations

of the Agreement that he contends require

dismissal of the suffolk County indict-

ments for murder and robbery. First, he

maintains that the indictments must be

dismissed because pursuant to subsections

(a) and (d) of art. III of the Agreement

the Suffolk district attorney's office

failed to try him within 180 days of the

lodging of a detainer against him by that

office on August 9, 1983. Second, he

maintains that arts. III(d), Iv(e) and

V(c) require dismissal because he was

returned to Federal custody before the

charges underlying the Suffolk County

detainer were tried.°

3 The defendant also argues that the

Commonwealth should be estopped from

asserting the inapplicability of the

Agreement. We need not consider

this argument because we conclude

that the Agreement applies to this

case.

A-38

Before discussing these contentions,

we think it useful to summarize the back-

ground of the Agreement and the manner in

which it operates.

The Agreement provides a prisoner

with an orderly method for the final

resolution of pending detainers* and fur-

furnishes prosecutors with a uniform

procedure by which they can obtain tem-

porary custody of a prisoner for purposes

of trial. In so doing, the Agreement

sought to redress certain abuses involv-

ing detainers. Before the Agreement's

enactment, it was commonplace to _ see

detainers routinely filed, often with

little basis in fact, which worked to the

4. The Agreement contains no definition

of the term “detainer," but the Sen-

ate report recommending its enact-

ment defines a "“detainer” as "a no-

tification filed with the institu-

tion in which a prisoner is serving

a sentence, advising that he is wan-

ted to face pending criminal charges

in another jurisdiction."

A-39

prisoner's prejudice. See Carchman v.

Nash, 105 S. Ct. 3401, 3408 (1985). In

many cases, the prisoner's custodians

would consider the pending charges under-

lying the detainers as proof of criminal

proclivity adversely affecting the pris-

oner's eligibility for work assignments,

other rehabilitation opportunities, and

parole. Id. at 3408-3409. See also

United States v. Scheer, 729 F. 2d 164,

166--67 (2d Cir. 1984). It was not infre-

quent to see a continual cycle of prose-

cution, a return to imprisonment, and

prosecution without any rehabilitation in

between. It was also not unusual for

pending detainers to be withdrawn shortly

before the prisoner was released.

Carchman v. Nash, supra at 3408. This

generally unregulated system frustrated

both prisoner and prosecutor. To allevi-

ate these problems the Agreement was

adopted to “encourage the expeditious and

A-40

orderly disposition of [pending] charges

and determination of the proper status of

any and all detainers based on untried

indictments, informations or complaints."

United States v. Scheer, supra at 167,

quoting from art. I of the Agreement.

The provisions of art. III and IV

form the core of the Agreement. Article

III focuses on the prisoner. Article III

(a) provides that a prisoner who "has

entered upon a term of imprisonment" can

request the speedy disposition of the

charges giving rise to a detainer. If

the prisoner makes such a request, the

jurisdiction that filed the detainer must

bring him to trial within 180 days. For

good cause, however, a court may grant

necessary or reasonable continuances

which extend this time. Article III(c)

requires that the prisoner's custodian

Shall promptly inform him of detainers

lodged against him and of his right to

A-41

make a request for final disposition of

the underlying charges. Article III(d)

States that any request for final dispo-

Sition operates as a request for final

disposition of all untried indictments

underlying all detainers that have been

lodged by the particular State. This

subsection also prescribes a penalty of

dismissal with prejudice if the prisoner

is returned to his original place of

confinement without having been tried on

the charges. Under art. III(e), the

prisoner's request for final disposition

constitutes a waiver of extradition.

Article IV addresses the prosecu-

tor’s ability to obtain temporary custody

of a prisoner who has entered upon a term

of imprisonment and places two limita-

tions on that authority. Article IV (c)

provides that the prisoner is to be tried

within 120 days of his arrival in the

State, but, like art. III, permits neces-

A-42

sary Or reasonable continuances to extend

that time. Article IV (e) also requires

dismissal of the indictment with preju-

dice if it is not tried prior co the

prisoner's being returned to his original

place of imprisonment.”

l. With this background in mind, we

turn to the defendant’s specific conten-

tions. The essence of his first argument

is that, because more than 180 days

elapsed between the lodging of the de-

tainer by the Suffolk district attorney's

office on August 9, 1983, and the May 10,

1984, filing of his motion to dismiss,

the time limitations imposed by the

Agreement have been exceeded and the

Suffolk indictments must be dismissed

with prejudice.

The most obvious difficulty with

Ln The requirement of dismissal in

arts. III and IV is repeated in art.

Vic).

A-43

this contention lies in the defendant's

Status between August 9, 1983, and March

13, 1984. During that period, he was

held as a putative parole violator and

not as a prisoner serving a sentence.

Both arts. III and IV of the Agreement

expressly permit only a prisoner who "has

entered upon a term of imprisonment” to

request the final disposition of pending

charges. It is the prevailing law that

an individual who is awaiting a determin-

ation whether he has violated his parole

is not yet serving a “term of imprison-

ment” within the meaning of that language

in the Agreement. United States v.

Dobson, 585 F.2d 55, 58-61 (3d Cir.

1978)°. The defendant did not again

6. The Court in Dobson (at 58-59),

explained the situation as follows:

"It seems clear to us that the natu-

ral meaning of the phrase ‘serving a

term of imprisonment’ denotes no

more or less than that definable

period of time during which a pris-

oner must be confined in order to

A-44

(footnote continued)

complete or satisfy the prison term

Or sentence which has been ordered.

Thus, the very words of the statute

would appear to exclude those held

in custody for periods of time which

are not defined in terms of dura-

tion, which are not certain, and

which do not follow a conviction or

determination of parole revocation.

Hence even though we recognize that

the basis for a parolee’s detention

is the underlying sentence from

which he has been paroled, until

such time that the parole violator

is recommitted after a hearing, and

his incarceration thereby made cer-

tain and fixed as to duration, no

term of imprisonment can be said to

have commenced or resumed. [In this

respect a parole violator is no dif-

ferent than a pretrial detainee who

is merely awaiting trial and who,

until conviction and _ sentencing,

cannot commence service or a term of

imprisonment.

"Indeed, until conviction at

trial and the imposition of a sen-

tence, the length of the pretrial

detainee’s confinement is uncertain.

So too until a parole revocation

hearing has been held, and the pa-

role violator’s parole is revoked

and he is recommitted, his status

with respect to confinement is simi-

larly uncertain. In short, just as

pretrial incarceration is a transi-

tory and impermanent state, incar-

ceration pursuant to a parole viola-

tion warrant is just as transitory

and impermanent. Both place the

prisoner in no more than a ‘holding

pattern.’” (Footnote omited,

emphasis in original.)

enter upon a term of imprisonment until

March 13, 1984, when his parole was re-

voked and he resumed serving his Federal

sentence.

The question, therefore, becomes

which of several dates should be chosen

as the date for the commencement of the

periods set forth in the Agreement.’ The

defendant contends that the four require-

ments which trigger the relevant time

8

periods in the Agreement’ do not have to

7. “The choice is among August 9, 1983,

when the detainer was lodged;

December 2, 1983, when the defen-

dant’s counsel requested in writing

that the Suffolk district attorney

arraign and try his client on the

Suffolk. indictments; January 17,

1984, when the defendant made what

we will assume to be a proper re-

quest for the disposition of all

charges against him; or March 13,

1984, when the defendant had his

parole revoked and resumed serving

his Federal sentence.

; These requirements are: the priso-

ner’'s entering upon a term of im-

prisonment; the existence of pending

extra-jurisdictional charges; the

A-46

occur in any special sequence. He rea-

sons that, upon the occurrence of the

last of the requirements, the limitation

periods should be deemed to have com-

menced running on the date of the first

requirement, here August 9, 1983, when

the Suffolk detainer was filed. The cal-

culation, of course, supports his posi-

tion. If carried to its logical extreme,

however, such an approach would likely

cause considerable confusion. For ex-

ample, immediately upon pretrial deten-

tion, prisoners could file requests under

the Agreement for final disposition of

all charges pending in other jurisdic-

tions, even though they had not yet been

convicted of the offense for which they

were held, had their places of confine-

ment finally determined, or had detainers

(footnote continued)

lodging of a detainer based upon

those charges; and the prisoner's

request for final disposition of

them.

A-47

lodged against them. Prosecuting offi-

cers would, in turn, be pressed to file

detainers prematurely in order to avoid

the loss of their rights to prosecute.

Not surprisingly, there is little author-

ity to support the argument favoring this

methodology.”

We think that the applicable date

for measuring the relevant time periods

in this case is no earlier than March 13,

1984, when the defendant actually entered

9. The defendant relies heavily on the

decision in United States Vv.

Hutchins, 489 F. Supp. 710, 713

(N.D. Ind. 1980). There is language

in that decision (at 713) that the

four requirements described in note

8, supra, do not have to "accrue in

any special sequence.” That deci-

sion, however, does not support the

defendant's position that the rele-

vant time relates back to the d-*te

the detainer is filed. The other

decision relied on by the defendant,

Nash v. Jeffes, 739 F. 2d 878 (3d

Cir. 1984), was reversed by the

United States Supreme Court in

Carchman v. Nash, 105° S. Ct. 3401

(1985).

A-48

upon a term of imprisonment. On that

date all four requirements under the

Agreement had been satisfied.!? We can

assume tha. the defendant was not re-

quired to file after March 13, 1984, a

new request for the final disposition

because both the Berkshire and Suffolk

prosecutors should have been aware of the

applicability of the Agreement, and both

were fully prepared to try

11

Petrozziello.

Lastly, we must determine what peri-

10. Establishing this date as the criti-

cal one follows the approach used in

United States v. Hutchins, supra,

the case upon which the defendant

primarily relies. See note 39,

Supra.

- We do not suggest that in other

cases it would be inappropriate to

require that the four events occur

in the order suggested by note 8,

Supra. Situations arising under the

Agreement are fact specific and,

like most speedy trial problems, are

to be dealt with descretely, not

mechanically.

11

A-49

ods of time have expired under the rele-

vant limitations periods. Both art.

III(a) and art. IV(c) provide for the

tolling of those periods during "any nec-

essary or reasonable continuance.” See

United States v.. Scheer, 729 F. 2d at

168-169; United States v. Roy, 771 F. 2d

54, 59 (2d Cir. 1985); “ommonwealth v.

Fasano, 6 Mass. App. Ct. 325, 333 (1978).

Here, the Agreement's speedy trial clock

ran for six days (March 13 through March

18, 1984) before it was tolled for the

Berkshire trial (March 19 through April

6, 1984). It then ran from April 7,

1984, until May 10, 1984 (a total of

thirty-four days), when this motion to

dismiss was filed. It has been suspended

ever since by the time required to decide

the motion. See Commonwealth v. Fasano,

6 Mass. App. Ct. at 333-334 (1978). The

clock will-not start running again until

the rescript on this appeal has been

A-50

entered in the trial court. Thus, forty

days have elapsed, and no relevant time

period in the Agreement has been

violated.

2. The defendant's second argument

is that the language in arts III(d),

Iv(e), and V(c) of the Agreement requires

dismissal of the Suffolk County indict-

ments because he was returned to Federal

custody after his acquittal on the Berk-

shire charge.

We do not think that the drastic

sanction of dismissal of first degree

murder and armed robbery charges should

apply where the defendant's return to

Federal custody was the result of a mis-

take. The Berkshire district attorney's

letter to all other district attorneys

12. We assume that the Suffolk district

attorney will bring his decision to

the attention of his counterparts in

the Northern Plymouth districts, who

also have indictments pending

against the defendant.

A-51

warning them of the requirements of the

Agreement is evidence of an intention to

comply with its terms. On April 6, 1984,

when the Berkshire trial ended, the

Suffolk prosecutor was fully prepared to

try the defendant , immediately on the

pending indictments. The Suffolk prose-

cutor was unaware of the defendant's re-

turn to Federal custody and assumed, as

Mr. Ford testified, that the defendant

would be transferred directly from Berk-

shire to Suffolk, where he would stand

trial. Thus, this is not a case where

detainers were being used "by prosecutors

to exact punishment without having to try

a charge which they feel would not result

in a conviction." Note, Detainers and

the Correctional Process, 1966 Wash.

U.L.Q.- 417, 423. In this important res-

pect, the purposes of the Agreement can-

not be said to have been violated.

Moreover, we do not consider dismis-

A-52

sal appropriate in the absence of proof

that the defendant's rehabilitation has

been adversely affected. "Hany ses

courts ... have concluded that indict-

ments should not be dismissed under [the

Agreement] if the prisoner has not shown

that his return to the sending state

before trial in the receiving state

impeded or affected his rehabilitation."

Malone v. United States, 482 A.2d 768,

771 (D.C. 1984), and numerous’ cases

cited. While in some cases proof that

the prisoner's rehabilitation has _ been

affected may not be necessary before an

order of dismissal is entered, we think,

in view of the seriousness of the

charges, that such proof was required

here.!?

13- The defendant makes only a conclu-

sory statement in his reply brief

that his efforts at rehabilitation

“may be frustrated.” This statement

is insufficient to establish that

his return to Suffolk would contra-

vene a main purpose of the Agreement.

A-53

We recognize that some courts have

approved dismissals based on the flat

language of the Agreement, regardless of

whether the sanction furthered its pur-

poses. See the cases cited in Malone v.

United States, 482 A.2d at 772. The de-

cisions, at least principally relied upon

by the defendant, are distinguishable or

of questionable vitality.+4 More recent

14. See, e.g. State v. Williams, 425 So.

2d 621 (Fla. App. 1983); State v.

Keener, 224 Kan. 100 (1978); United

States v. Eaddy, 595 F.2d 341 (6th

Cir. 1979). In Wiggins, after a

Federal prisoner filed a request for

final disposition of detainers that

had been lodged against him in two

Florida counties, one county asked

for, and was granted, temporary: cus~-

tody of the prisoner pursuant to the

Agreement. That charge disposed of,

the prisoner was returned to Federal

custody and released on parole be-

fore the second county sought extra-

dition to pursue its charges. Thus,

the very vice the Agreement seeks to

remedy (dormant detainers awaiting

the conclusion of prior sentences)

was committed by the State author-

ities. Furthermore, the opinion,

barely two pages long, provides no

other information about the circum-

stances that gave rise to it. In

A-54

decisions view cases like the present one

with circumspection, and decline to dis-

miss serious charges where that sanction

would not further the Agreements’ pur-

poses. See Malone v. United States, 771

F.2d 54 (2d Cir. 1985). In this respect,

the decisions follow what now appears to

be the attitude of the United States

Supreme Court concerning the Agreement's

construction. See Carchman v. Nash, 105

(footnote continued)

Keener, the facts track ours more

closely. However, one of the cases

cited therein for its central pro-

position (.United States v. Mauro,

544 F.2d 588 [2d Cir. 1976]) was

reversed (United States v. Mauro,

436 U.S. 340 [1978]), casting doubt

on the continued validity of the

Keener decision. In Eaddy, the

authorities violated the time re-

quirements of arts. III and IV by

not bringing the prisoner to trial

for 291 days, and twice transferred

him back to Federal custody after a

detainer had been lodged against

him. Moreover, the Government did

not even contest that the time re-

quirements of the Agreement had been

violated.

A=55

S. Ct. at 3410-3411.

Having dealt with all the issues

raised by the reported questions, and

having found the judge’s denial of the

motion correct, we see no need to frame a

rescript beyond:

Order denying motion to

dismiss affirmed.

Interstate Agreement on Detainers,

Mass. Gen. Laws ch. 276 App. et. seq.

(1970).

Sec. 1.1 Form and contents

An agreement is hereby entered into

by this commonwealth with all other ju-

risdictions legally joining therein in

Substantially the following form:

AGREEMENT ON DETAINERS

The contracting states solemnly agree

that:

ARTICLE I.

The party states find that charges

Outstanding against a prisoner, detainers

based on untried indictments, information

Or complaints, and difficulties in secur-

ing speedy trial of persons already in-

carcerated in other jurisdictions, pro-

duce uncertainties which obstruct pro-

grams of prisoner treatment and rehabil-

itation. Accordingly, it is the policy

of the party states and the purpose of

this agreement to encourage the expedi-

tious and orderly disposition of such

charges and determination of the proper

status of any and all detainers based on

untried indictments, informations or com-

plaints. The party states also find that

proceedings with reference to such

charges and detainers, when emanating

from another jurisdiction, cannot pro-

perly be had in the absence of coopera-

tive procedures. It is the purpose of

this agreement to provide such cooper-

ative procedures.

ARTICLE II

As used in this agreement:

(a) “State” shall mean a state of

the United States; the United States of

America; a territory or possession of the

United States; the District of Columbia;

A-58

the Commonwealth of Puerto Rico.

(b) “Sending state” shall mean a

State in which a prisoner is incarcerated

at the time that he initiates a request

for final disposition pursuant to Article

III hereof or at the time a request for

custody or availability is imitiated pur-

suant to Article IV hereof.

(c) "Receiving state” shall mean the

state in which trial is to be had on an

indictment, information or complaint pur-

Suant to Article III or Article IV here-

of.

ARTICLE [III

(a) Whenever a person has entered

upon a term of imprisonment im a penal or

correctional institution of a party

State, and whenever during the continu-

ance of the term of imprisonment there is

pending in any other party state any un-

tried indictment, information or com-

plaint on the basis of which a detainer

A-59

has been lodged against the prisoner, he

shall be brought to trial within one hun-

dred eighty days after he shall have

caused to be delivered to the prosecuting

officer and the appropriate court of the

prosecuting officer's jurisdiction writ-

ten notice of the place of his imprison-

ment and his request for final disposi-

tion to be made of the indictment, infor-

mation or complaint; provided, that, for

good cause shown in open court, the pris-

oner or his counsel being 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 appropriate official having custody

of the prisoner, stating the term of com-

mitment 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

A-60

of parole eligibility of the prisoner,

and any decisions of the state parole

agency relating to the prisoner.

(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 correction or other offi-

cial having custody of the prisoner, who

shall promptly forward it together with

the certificate to the appropriate pro-

secuting official and court by registered

Or certified mail, return receipt re-

quested.

(c) The warden, commissioner of cor-

rection or other official having custody

of the prisoner shall promptly inform him

of the source and contents of any detain-

er lodged against him and shall also in-

form him of his right to make a request

for final disposition of the indictment,

information or complaint on which the

A-61

detainer is based.

(d) Any request for final disposi-

tion made by a prisoner pursuant to para-

gQraph (a) hereof shall operate as a re-

quest for final disposition of alli un-

tried indictments, informations or com-

plaints on the basis of which detainers

have been lodged against the prisoner

from the state to whose prosecuting offi-

cial the request for final disposition is

specifically directed. The warden, com-

missioner or correction or other official

having custody of the prisoner shall

forthwith notify all appropriate prose-

cuting officers and courts in the several

jurisdictions within the state to which

the prisoner's request for final disposi-

tion is being sent of the proceeding

being intiated by the prisoner. Any no-

tification sent pursuant to this para-

graph shall be accompanied by copies of

the prisoner's written notice, request,

and the certificate. If trial is not had

On any indictment, information or com-

plaint contemplated hereby prior to the

return of the prisoner to the original

place of imprisonment, such indictment,

information or complaint shall not be of

any further force or effect, and the

court shall enter an order dismissing the

same with prejudice.

(e) Any request for final disposi-

tion made by a prisoner pursuant to para-

graph (a) hereof shall also be deemed to

be a waiver or extradition with respect

to any charge or proceeding contemplated

thereby or included therein by reason of

paragraph (d) hereof, and a waiver of

extradition to the receiving state to

serve any sentence there imposed upon

him, after completion of his term of im-

prisonment in the sending state. The

request for final disposition shall also

constitute a consent by the prisoner to

A-63

the production of his body in any court

where his presence may be required in

order to effectuate the purposes of this

agreement and a further consent volun-

tarily to be returned to the original

place of imprisonment in accordance with

the provisions of this agreement.

Nothing in this paragraph shall prevent

the imposition of a concurrent sentence

if otherwise permitted by law.

(f£) Escape from custody by the pris-

oner subsequent to his execution of the

request for final disposition refered to

in paragraph (a) hereof shall void the

request.

ARTICLE IV

(a) The appropriate officer of the

jurisdiction in which an untried indict-

ment, information Or complaint is

pending, shall be entitled to have a

prisoner against whom he has lodged a

detainer and who is serving a term of

imprisonment in any party state made

available in accordance with paragraph

(a) of Article V upon presentation of a

written request for temporary custody or

availability to the appropriate author-

ities of the state in which the prisoner

is incarcerated; provided, that, the

court having jurisdiction of such indict-

ment, information or complaint shall have

duly approved, recorded and transmitted

the request; and, provided further, that

there shall be a period of thirty days

after receipt by the appropriate author-

ities before the request is honored,

within which period the governor of the

sending state may disapprove the request

for temporary custody or availability,

either upon his own motion or upon the

motion of the prisoner.

(b) Upon receipt of the officer's

written request as provided in paragraph

(a) hereof, the appropriate authorities

having the prisoner in custody shall fur-

nish the officer with a certificate

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 de-

cisions of the state parole agency relat-

ing to the prisoner. Said authorities

simultaneously shall furnish all other

officers and appropriate courts in the

receiving state who have lodged detainers

against the prisoner with similar certi-

ficates and with notices informing them

of the request for temporary custody or

availability and of the reasons thereof.

(c) In respect to any proceeding

made possible by this Article, trial

shall be commenced within one hundred

twenty days of the arrival of the pris-

oner in the receiving state, but 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 contin-

uance,

(d) Nothing contained in this Arti-

cle shall be construed to deprive any

prisoner of any right which he may have

to contest the legality of his delivery

as provided in paragraph (a) hereof, but

such delivery may not be opposed or de-

nied on the ground that the executive

authority of the sending state has not

affirmatively consented to or ordered

such delivery.

(e) If trial is not had on any in-

dictment, information or complaint con-

templated hereby prior to the prisoner's

being returned to the original place of

imprisonment pursuant to Article Vie)

hereof, such indictment, information or

complaint shall not be of any further

force or effect, and the court shall

enter an order dismissing the same with

prejudice.

ARTICLE V

(a) In response to a request made

under Article III or Article IV hereof,

the appropriate authority in a sending

state shall offer to deliver temporary

custody of such prisoner to the appro-

priate authority in the state where such

indictment, information or complaint is

pending against such person in order that

a speedy and efficient prosecution may be

had. If the request for final disposi-

tion is made by the prisoner, the offer

of temporary custody shall accompany the

written notice provided for in Article

III of this agreement. In the case of a

federal prisoner, the appropriate author-

ity in the receiving state shall be en-

titled to temporary custody as provided

by this agreement or to the prisoner's

presence in federal custody at the place

of trial, whichever custodial arrangement

may be approved by the custodian.

(b) The officer or other representa-

tive of a state accepting an offer of

temporary custody shall present the fol-

lowing upon demand:

(1) Proper identification and evi-

dence of his authority to act for the

State into whose temporary custody the

prisoner is to be given.

(2) A duly certified copy of the

indictment, information or complaint on

the basis of which the detainer has been

Leaged and on the basis of which tempor-

ary custody of the prisoner has been

made.

(c) If the appropriate authority

Shall refuse or fail to accept temporary

custody of said person, or in the event

that an action on the indictment, infor-

mation or compis.nt on the basis of which

the detainer has been lodged is not

brought to trial within the period pro-

vided in Article III or Article IV here-

of, the appropriate court of the juris-

diction where the indictment, information

or complaint has been pending shall enter

an order dismissing the same with preju-

dice, and any detainer based thereon

shall cease to be of any further force or

effect.

(d) The temporary custody referred

to in this agreement shall be only for

the purpose of permitting prosecution on

the charge or charges contained in one or

more untried indictments, informations or

complaints which form the basis of the

detainer or detainers or for prosecution

On any other charge or charges arising

out of the same transaction. Except for

his attendance at the court and while

being transported to or from any place at

which his presence may be required, the

prisoner shall be held in a suitable jail

or other facility regularly used for per-

sons awaiting prosecution.

(e) At the earliest practicable time

consonant with the purposes of this

agreement, the prisoner shall be returned

to the sending state.

.(£) During the continuance of tem-

porary custody or while the prisoner is

otherwise being made available for trial

as required by this agreement, time being

served on the sentence shall continue to

run but good time shall be earned by the

prisoner only if, and to the extent that,

the law and practice of the jurisdiction

which imposed the sentence may allow.

(g) For all purposes other than that

for which temporary custody as provided

in this agreement is exercised, the pris-

oner shall be deemed to remain in the

custody of and subject to the jurisdic-

tion of the sending staze and any escape

from temporary custody may be dealt with

in the same manner as an escape from the

Original place of imprisonment or in any

other manner permitted by law.

(h) From the time that a party state

receives custody of a prisoner pursuant

to this agreement until such prisoner is

returned to the territory and custody of

the sending state, the state in which the

one or more untried indictments, informa-

tions or complaints are pending or in

which trial is being had shall be resnon-

sible for the prisoner and shall also pay

all costs of transporting, caring for,

keeping and returning the prisoner. The

provisions of this paragraph shall govern

unless the states concerned shall have

entered into a supplementary agreement

providing for a different allocation of

costs and responsibilities as between or

among themselves. Nothing herein con-

tained shall be construed to alter or

A-72

affect any internal relationship among

the departments, agencies and officers of

and in the government of a party state,

Or between a party state and its subdivi-

sions, as to the payment of costs, or

responsibilities thereof.

ARTICLE VI

(a) In determining the duration and

expiration dates of the time periods pro-

vided in Articles [III and IV of this

agreement, the running of said time peri-

ods shall be tolled whenever and for as

long as the prisoner is unable to stand

trial, as determined by the court having

jurisdiction of tee matter.

(b) No provision of this agreement,

and no remedy made available by this

agreement, shall apply to any person who

is adjudged to be mentally ill.

ARTICLE VII

Each state party to this agreement

shall designate an officer who, acting

jointly with like officers of other party

states, shall promulgate rules and regu-

lations to carry out more effectively the

terms and provisions of this agreement,

and who shall provide, within and without

the state, information necessary to the

effective operation of this agreement.

ARTICLE VIII

This agreement shall enter into full

force and effect as to a party state when

such state has enacted the same into law.

A state party to this agreement may with-

draw herefrom by enacting a statute re-

pealing the same. However, the withdraw-

al of any state shall not affect the sta-

tus of any proceedings already initiated

by inmates or by state officers at the

time withdrawal takes effect, nor shall

it affect their rights in respect there-

of.

ARTICLE IX

This agreement shall be liberally

A-74

re -

construed so as to effectuate its pur-

poses, The provisions of this agreement

Shall be severable and if any phrase,

clause, sentence or provision of this

agreement is declared to be contrary to

the constitution of any party state or of

the United States or the applicability

thereof to any government, agency, person

Or circumstance is held invalid, the va-

lidity of the remainder of this agreement

Shall be held contrary to the constitu-

tion of any state perty hereto, the

agreement shall remain in full force and

effect as to the remaining states and in

full force and effect as to the state

affected as to all severable matter.