Frederick Lee Pharm v. Bryan Bartow

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2007 WI 13 SUPREME COURT CASE NO.: OF WISCONSIN 2004AP583 COMPLETE TITLE: State of Wisconsin ex rel. Frederick Lee Pharm, Petitioner-Appellant-Petitioner, v. Byran Bartow, Director and Wisconsin Resource Center, Respondents-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS 2005 WI App 215 Reported at: 287 Wis. 2d 663, 706 N.W.2d 693 (Ct. App. 2005 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: January 25, 2007 September 7, 2006 Circuit Winnebago Bruce Schmidt ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins the dissent. NOT PARTICIPATING: ATTORNEYS: For the petitioner-appellant-petitioner there were briefs by Jon G. Furlow, Roisin H. Bell, Nia Enemuoh-Trammell, and Michael Best & Friedrich LLP, Madison, and oral argument by Jon G. Furlow. For the respondents-respondents the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy Lautenschlager, attorney general. 2007 WI 13 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP583 (L.C. No. 2004IP1) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. Frederick Lee Pharm, FILED Petitioner-Appellant-Petitioner, v. JAN 25, 2007 Bryan Bartow, Director, and Wisconsin Resource Center, A. John Voelker Acting Clerk of Supreme Court Respondents-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 decision PATIENCE DRAKE ROGGENSACK, J. of the court of appeals Affirmed. This is a review of a that affirmed the circuit court's order1 denying Frederick Lee Pharm's (Pharm) petition for habeas corpus discharge from his commitment pursuant to Wis. Stat. ch. Interstate 980 (2003-04).2 Agreement on extradition for criminal 1 Detainers asserts (IAD) proceedings, The Honorable Bruce Winnebago County, presided. 2 Pharm Schmidt, that and his Wisconsin Circuit due waivers was Court to the of precluded Judge for All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. No. 2004AP583 from commencing commitment under ch. 980 following the term of incarceration imposed for crimes committed in Wisconsin. ¶2 of We conclude that neither the IAD nor Pharm's waivers extradition under the IAD for his prosecution and incarceration by Wisconsin precluded Wisconsin from commencing a ch. 980 commitment proceeding. Pharm's rights under the IAD and its extradition waivers were fully accorded upon his return to Wisconsin to serve his outstanding criminal sentence. point, the IAD had no further application to At that Pharm. In addition, any obligations Wisconsin had to Nevada under the IAD were concluded when Pharm was returned to Nevada to complete his term of incarceration for his Nevada convictions. Accordingly, we affirm the decision of the court of appeals. I. ¶3 BACKGROUND The relevant facts are undisputed. In 1975, Pharm committed sexual acts that led to criminal charges in Milwaukee County. Pharm left charges. In 1977, Pharm was convicted of murder in Nevada and sentenced to life Wisconsin in prior prison. In to his October arrest 1987, on the those Nevada Department of Prisons informed Pharm that Wisconsin had filed a detainer against him based on pending charges in Milwaukee County. ¶4 of In response, Pharm executed a "Request for Disposition Indictments, Article III, Disposition Informations Wis. asked Stat. for or Complaints," § 976.05(3). "final pursuant Pharm's disposition of to IAD Request for all untried indictments, informations or complaints on the basis of which 2 No. detainers have been lodged." As part of his 2004AP583 Article III request, he agreed that in asking for prompt final disposition, I also agree that this request shall be deemed to be my waiver of extradition with respect to any charge or proceeding contemplated hereby or included herein, and a waiver of extradition to your state to serve any sentence there imposed upon me, after completion of my term of imprisonment in this state. Pharm further consented to be produced in any court necessary to effectuate the purposes of the IAD and to be voluntarily returned to Nevada to complete his term of incarceration there. ¶5 Based on Pharm's Request for Disposition, Nevada submitted an "Offer to Deliver Temporary Custody" to Wisconsin, "in order that speedy and efficient prosecution may be had of the indictment, information or complaint . . . ." then sent a document entitled "Prosecutor's Wisconsin Acceptance of Temporary Custody Offered in Connection with an Inmate's Request for Disposition of a Detainer." It was signed by the Milwaukee County Assistant District Attorney and stated, "I propose to bring this person to trial on the complaint named in the offer within the time specified in Article III(a) of the Agreement on Detainers." Wisconsin also agreed to return Pharm to Nevada, or any jurisdiction Nevada designated to take temporary custody, immediately after a trial on the Wisconsin charges was completed. Thereafter, Pharm was transported to Wisconsin to face criminal charges. ¶6 A jury found Pharm guilty of both indecent behavior with a child and sexual perversion. The circuit court imposed consecutive indeterminate sentences, not to exceed a total of 3 No. fifteen years, and ordered the sentences to 2004AP583 be consecutively to Pharm's life sentence in Nevada. served Pharm was then returned to Nevada to continue incarceration there. ¶7 In October 1990, Pharm was paroled by Nevada. The Parole Agreement stated as a condition, "Parole to Wisconsin Detainer." Nevada authorities authorities regarding the sent terms of a letter Pharm's to Wisconsin custody, which stated: The above named subject has been paroled to your "HOLD" and will remain under Nevada's parole supervision until Life. To assist us in fulfilling our responsibility in this matter we request that you notify us immediately should the subject escape from your custody, or of the final disposition of any pending charges. Please accept this letter as a request for sixty (60) days notification prior to the subject's release or transfer within your system. ¶8 trial on In contrast to what occurred before Pharm's Wisconsin outstanding charges, Nevada executed no Offer to Deliver Temporary Custody prior to Pharm's return to Wisconsin to begin his term of incarceration. of Pharm and brought him to Wisconsin then took custody Wisconsin for confinement in a Wisconsin prison. ¶9 was Pharm's mandatory release date from a Wisconsin prison scheduled for October 28, 1997. Prior to his release, Nevada wrote Pharm advising him to contact the Nevada Division 4 No. of Parole and Probation upon his release.3 of his scheduled proceeding to release, commit Pharm Wisconsin as a 2004AP583 However, on the date initiated sexually a ch. violent 980 person. Following a jury trial, Pharm was found to be a sexually violent person, and the Milwaukee County Circuit Court committed him to a secure mental health facility. on direct appeal. Pharm's commitment was upheld State v. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. ¶10 Pharm moved, pursuant to Wis. Stat. § 806.07(1)(h), to vacate the judgment on the grounds that his commitment violated the Uniform § 976.03. Criminal Extradition Act (UCEA), Wis. Stat. The circuit court denied the motion and the court of appeals summarily affirmed. State v. Pharm, No. 2001AP2835, unpublished slip op. (Wis. Ct. App. April 8, 2003). Next, Pharm filed a federal habeas corpus petition claiming a violation of the IAD, which was dismissed by the district court for failure to exhaust state remedies. 3 It appears that Pharm intended to remain in Wisconsin after his release from confinement. The Nevada Division of Parole and Probation had requested in a letter dated August 26, 1997, that upon his release, Pharm was to immediately contact the Division of Parole and Probation when he arrived at his mother's residence. The letter does not indicate where his mother resided; however, the criminal complaint filed with the Milwaukee County Circuit Court states that at that time Pharm's mother lived in the city of Milwaukee. There is no letter in the record indicating whether Wisconsin notified Nevada 60 days prior to the conclusion of Pharm's sentence, as Nevada requested. However, based on Nevada's correspondence to Pharm that is referred to above, it appears that Nevada was notified of Pharm's pending release. 5 No. ¶11 2004AP583 Pharm then filed this habeas corpus action, alleging his ch. 980 commitment violated the IAD. The circuit court denied Pharm's habeas petition, which decision was affirmed by the court of appeals. State ex rel. Pharm v. Bartow, 2005 WI App 215, 287 Wis. 2d 663, 706 N.W.2d 693. In so concluding, the court of appeals held that Pharm had no right to be returned to Nevada or to expect immunization proceedings under ch. 980. from Id., ¶25. potential commitment Pharm petitioned for review, which we granted. II. A. DISCUSSION Standard of Review ¶12 The review of an order denying habeas corpus relief is State v. Pozo, 2002 WI App a mixed question of fact and law. 279, ¶6, 258 Wis. 2d 796, 654 N.W.2d 12. findings of However, the case. fact unless circuit they court We will not reverse are made clearly erroneous. no factual findings Id. in this Therefore, whether habeas corpus relief is available is a question of law that we review independently. Id. (citing State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999)); see also State ex rel. Hager v. Marten, 226 Wis. 2d 687, 693-94, 594 N.W.2d 791 (1999) (citation omitted). ¶13 To review the order that denied habeas corpus relief in light of the arguments Pharm raises, we interpret the IAD, codified at application Wis. of a Stat. statute § 976.05. to an The undisputed interpretation set of and facts questions of law that this court reviews independently. are State v. Sostre, 198 Wis. 2d 409, 414, 542 N.W.2d 774 (1996) (citing 6 No. Ynocencio v. Fesko, 114 Wis. 2d 391, 396, 338 2004AP583 N.W.2d 461 (1983)). B. The IAD ¶14 The "procedures prisoner IAD by is which incarcerated an a interstate member in compact State another may member that obtain prescribes for trial and jurisdiction a by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction." State v. Eesley, 225 Wis. 2d 248, 254, 591 N.W.2d 846 (1999) (quoting United States v. Mauro, 436 U.S. 340, 343 (1978)). Wisconsin and Nevada are party states to the IAD. Both The IAD is set out in Wis. Stat. § 976.05 and Nev. Rev. Stat. § 178.620 (2005). The IAD aids in efficient prosecution of crimes and it removes uncertainties treatment and that rehabilitation obstruct by programs clarifying of prisoner prisoner status. § 976.05(1). ¶15 The IAD is a congressionally sanctioned interstate compact within the meaning of the Compact Clause of the United States Constitution, Art. I, § 10, cl. 3, "and thus is a federal law subject to federal construction." Carchman v. Nash, 473 U.S. 716, 719 (1985) (citing Cuyler v. Adams, 449 U.S. 433, 438442 (1981)). Therefore, in order to accord more consistency with the IAD interpretations of other federal and state courts, we may employ federal rules of construction in interpreting Wis. Stat. § 976.05. ¶16 We begin by "determin[ing] whether the issue has a plain and unambiguous meaning . . . . 7 language at Our inquiry No. 2004AP583 [will] cease if the statutory language is unambiguous and 'the statutory scheme is coherent and consistent.'" Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)). To determine whether statutory language is plain and unambiguous, we look to the "language itself, the specific context in which that language is used, and the broader context of the statute as a whole." of Id. at 341 (citations omitted). statutory words will construction be is that, interpreted as "A fundamental canon unless otherwise defined, taking their ordinary, Perrin v. United States, 444 U.S. 37, contemporary, meaning." 42 (1979) (citing Burns v. Alcala, 420 U.S. 575, 580-81 (1975)). If a statute is plain and unambiguous on its face, the legislative history is not ordinarily used as a guide to its meaning.4 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (citing Ex parte Collett, 337 U.S. 55, 61 (1949)).5 ¶17 The provisions of the IAD are triggered when a detainer is filed or "lodged" for an untried criminal charge by any party state that seeks custody with a party state that has custody. Mauro, 436 U.S. at 343-44. There are two IAD 4 This approach to statutory construction is consistent with Wisconsin's principles of statutory construction. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶4548, 271 Wis. 2d 633, 681 N.W.2d 110. 5 We do note that the legislative history, which is detailed by the United States Supreme Court in United States v. Mauro, 436 U.S. 340 (1978), is completely consistent with a statutory interpretation that utilizes a plain meaning approach. 8 No. 2004AP583 provisions by which a receiving state may obtain transfer of temporary custody of a prisoner and cause him or her to appear for trial, Article III or Article IV.6 Cuyler, 449 U.S. at 443- 45; Wis. Stat. § 976.05(3)-(4). ¶18 Article III of the IAD, Wis. Stat. § 976.05(3), comes into play when the prisoner is notified that a detainer has been lodged and he or she initiates a request for final disposition of outstanding indictments, informations or complaints. 449 U.S. at 444; § 976.05(3)(a).7 Cuyler, An IAD Article III Request for Disposition by a prisoner includes a waiver of extradition to stand trial and a waiver of extradition to serve any sentence that is imposed subsequent to conviction. § 976.05(3)(e).8 6 A "receiving state" under the IAD is that state seeking custody, Wis. Stat. § 976.05(2)(a), and a "sending state" is the state that has custody when the detainer is lodged, § 976.05(2)(b). 7 Wisconsin Stat. § 976.05(3)(a) provides in relevant part: Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint 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 caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of . . . his or her request for a final disposition to be made of the indictment, information or complaint . . . . 8 Wisconsin Stat. § 976.05(3)(e) provides in relevant part: Any request for final disposition made by a prisoner under par. (a) shall also be deemed to be a 9 No. ¶19 2004AP583 Article IV of the IAD, Wis. Stat. § 976.05(4), effects prisoner transfer when the prisoner is notified that a detainer has been filed, but he or she does not make an affirmative request under Article III. Instead, the prosecuting attorney of the receiving state that filed the detainer initiates transfer by filing a written notice of the custody proper authorities in the sending state. § 976.05(4)(a).9 444; The prisoner request with the Cuyler, 449 U.S. at effects no waiver of extradition in an Article IV proceeding so that a hearing on the prisoner's right to resist extradition may be held under the waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of par. (d), and a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner after completion of the prisoner's term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of the prisoner's body in any court where the prisoner's presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. 9 Wisconsin Stat. § 976.05(4)(a) provides in relevant part: The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom the officer has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with sub. (5)(a) upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated . . . . 10 No. UCEA, in those states that have enacted the UCEA. 2004AP583 Cuyler, 449 U.S. at 448; § 976.05(4)(d).10 ¶20 III, Pharm Wis. Stat. Disposition charges made and § 976.05(3)(e). Request for § 976.05(3). requires to a waivers serve any An of Disposition Article III extradition sentence under to Article Request face subsequently for pending imposed. Therefore, under the IAD no hearing pursuant to the UCEA is available to him in regard to extradition for either his trial or service of any term of incarceration imposed by Cuyler, 449 U.S. at Wisconsin under the IAD detainer it filed. 445. ¶21 Pharm contends that Wisconsin had only custody of him while he was in a Wisconsin prison. he argues, when he was paroled by Wisconsin, required by the IAD to return him to Nevada. temporary Therefore, Wisconsin was Pharm misperceives the scope of temporary custody under the IAD. ¶22 In an Article III case, such as Pharm's, when final disposition of the charges has been requested by the prisoner, the sending state offers to deliver temporary custody of the prisoner "in order that speedy and efficient prosecution may be 10 Wisconsin Stat. § 976.05(4)(d) provides: Nothing contained in this subsection shall be construed to deprive any prisoner of any right which the prisoner may have to contest the legality of the prisoner's delivery under par. (a), but such delivery may not be opposed or denied on the grounds that the executive authority of the sending state has not affirmatively consented to or ordered such delivery. 11 No. had." Wis. referred to Stat. for § 976.05(5)(a). this transfer is The "only 2004AP583 temporary for the custody 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 . . . ." § 976.05(5)(d) (emphasis added). Then, "[a]t the earliest practicable time consonant purposes with the of this agreement, the prisoner shall be returned to the sending state." § 976.05(5)(e). all purposes temporary other than that for which "For custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and jurisdiction of the sending state . . . ." ¶23 Under the plain language of subject to the § 976.05(5)(g). the statute, temporary custody does not include custody for the purpose of subsequent incarceration in a receiving state. State of New York by Coughlin v. Poe, 835 F. Supp. 585, 590-91 (E.D. Okla. 1993) (stating that implication, execution temporary indicate of custody custody sentence in "does for the the not expressly, purpose receiving of or by service or State"). This interpretation is supported by the record before us in regard to Nevada's actions Wisconsin. prior to each time Pharm was taken to For example, Nevada executed an "Offer to Deliver Temporary Custody" Wisconsin to face prior untried to Pharm's charges, but being it transported executed no to such document when it released Pharm to be transported to Wisconsin to begin to serve his term of incarceration. Pharm was returned to Wisconsin 12 to In addition, when begin his term of No. 2004AP583 incarceration, Wisconsin executed no document that evidenced an acceptance of temporary custody as it had when Pharm was sent to Wisconsin for trial. ¶24 Furthermore, unambiguous. The the IAD language applies of to the IAD detainers is clear lodged and against prisoners that are based on untried indictments, informations or complaints. As its purpose set out in Article I explains: "this agreement [is] to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations reference or to complaints." "untried" § 976.05(3)-(5). or Wis. Stat. "pending" § 976.05(1). charges is The repeated in There is nothing in the IAD that indicates that the rights accorded to prisoners under it attach when there are no untried charges outstanding. Therefore, we conclude that under the plain language of the statute, a prisoner has the following rights after he or she files a Request for Disposition under Article III (§ 976.05(3)): (1) transportation to a receiving state to answer pending charges; (2) commencement of a trial within 180 days in the receiving state; (3) return to the sending state to complete the prisoner's term of incarceration; and (4) upon completion of the prisoner's term of incarceration in the sending state, return to the receiving state to serve any term of incarceration that has been imposed there. ¶25 Pharm also argues that his Nevada "imprisonment," as that term is used in the IAD. is not defined in the IAD. parole is Imprisonment Therefore, it is defined according 13 No. to its common meaning. 2004AP583 Perrin, 444 U.S. at 42 (stating that unless otherwise defined, words will be interpreted as taking their common meaning) (citation omitted)). Federal courts have defined imprisonment as "that definable period of time during which a prisoner must be confined in order to complete or satisfy the prison term or sentence which has been ordered." United States v. Dobson, 585 F.2d 55, 58-59 (3rd Cir. 1978) (emphasis in original); see also United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980) (concluding a person on parole is not imprisoned under the IAD). ¶26 We note that under truth-in-sentencing in Wisconsin, "imprisonment" is defined as a bifurcated sentence comprised of initial confinement and extended supervision. See Wis. Stat. § 973.01; State v. Cole, 2003 WI 59, ¶27, 262 Wis. 2d 167, 663 N.W.2d 700. This definition is in contrast to the definition that was commonly used in Wisconsin prior to the enactment of § 973.01. At "incarcerated that or time, confined Wisconsin in a jail defined or imprisonment prison." Id., as ¶26. However, state law does not drive the interpretation of the IAD, which is a federal compact subject to federal construction. Carchman, 473 U.S. at 719 (citing Cuyler, 449 U.S. at 438-442). ¶27 In addition, if the definition of imprisonment under the IAD were interpreted to include both actual confinement and extended supervision or parole, a prisoner sentenced to parole for life in a sending state would remain indefinitely in the sending state and would never be eligible to serve his or her sentence in the receiving state. 14 This result is not in accord No. with the plain language of the IAD. 2004AP583 State ex rel. Otterstetter v. McManus, 243 N.W.2d 730, 732-33 (Minn. 1976).11 ¶28 imposed The issue in Otterstetter was whether a penal sentence by a foreign state, running concurrently with a Minnesota sentence, required the return of the prisoner to the foreign state upon his release on parole in Minnesota. 731. The court noted that "term of imprisonment" Id. at was not defined in the IAD, but concluded that "it is clear that the phrase is used in this section [Article III] to refer to the period of actual physical confinement of the prisoner." Id. at 732. ¶29 Pharm also contends that his status as parolee keeps him within the IAD. We do not agree. States in Supreme Court decision conclusion. In Carchman, applies only to a information pending or against Respondent Nash detainer complaint," a the Court based which prisoner." sought to Carchman stated on an refers 11 his Nevada The United supports that Article our III "untried indictment, to Carchman, invoke a "criminal 473 rights U.S. under charges at the 725. IAD See also United States v. Dobson, 585 F.2d 55, 58-59 (3rd Cir. 1978) (defining "term of imprisonment" as the "definable period of time during which a prisoner must be confined in order to complete or satisfy the prison term or sentence") (emphasis in original); United States v. Carnes, 41 F. Supp. 2d 719, 722 (E.D. Mich. 1999) (stating that "[a]lthough a parolee technically continues to serve the sentence imposed by the court, he is not actually serving a term of imprisonment as required under the express provisions of the IAD"); People v. Brown, 854 P.2d 1332, 1336 (Colo. Ct. App. 1993) (stating "[a] parolee is not a 'prisoner' who is 'serving a term of imprisonment'"). 15 No. because his probation-revocation hearing within 180 days. charges Id. at 722. were not 2004AP583 brought to The United States Supreme Court held that Article III did not apply to probation-violation detainers because a probation-violation charge is not a criminal charge pending against a prisoner. ¶30 Like Carchman, Pharm Id. at 734. does not have any criminal charges pending against him in Nevada; he has been paroled by Nevada. Furthermore, no detainers have been lodged in Wisconsin by Nevada against Pharm to trigger the IAD. While probation and parole are not the same, Carchman is instructive because Pharm has no outstanding criminal charges pending against him that could trigger an IAD detainer and that fact was significant in the Court's decision in Carchman. Id. Stated otherwise, Carchman concluded that all detainers do not trigger the IAD; only those detainers for untried criminal charges trigger the IAD. Id. ¶31 not apply Other courts have also recognized that the IAD does to parolees who are not incarcerated confined while awaiting a parole revocation hearing. v. U.S. Parole Comm'n, 702 F.2d 842, 846 (9th or who are See Hopper Cir. 1983) (holding that an adjudicated parole violator warrant is not a "complaint on the basis of which a detainer has been lodged" within the meaning of Article III); United States v. Black, 609 F.2d 1330, 1333 (9th Cir. 1979) (stating that when a prisoner was released on parole and transferred to federal custody to serve an outstanding sentence, he was no longer covered by the IAD); Dobson, 585 F.2d at 59 (holding that a parole violator 16 No. 2004AP583 held in custody pursuant only to a parole violation does not come within the provisions of the IAD because he or she is not "serving a term of imprisonment"); State v. Bellino, 557 A.2d 963, 964 (Me. 1989) (holding that the IAD does not apply to parolees because they are not "prisoners serving a sentence in prison"); Bush v. Canary, 286 N.W.2d 536, 538 n.1 (S.D. 1979) (stating the IAD "is not applicable to detainers lodged for parole violations"). Pharm argues that Snyder v. Sumner, 960 F.2d 1448 (9th ¶32 Cir. 1992), supports his assertion that the IAD applied to him after he was placed on parole by Nevada and transported Wisconsin to begin his Wisconsin incarceration. conclude that Snyder is not applicable. to However, we In Snyder, Nevada filed a detainer for pending felony charges under the IAD while Snyder was incarcerated in Iowa. Id. at 1450. Snyder was then transported to Nevada for trial, which did not commence for 426 days. Id. While Snyder was awaiting trial in Nevada, Iowa paroled him. Id. On appeal subsequent to his convictions of the Nevada charges, Snyder argued that Nevada had violated his right to be brought to trial within 120 days as required by the IAD, and therefore, his convictions should be overturned. Id. Nevada contended that once he was paroled, the IAD no longer applied. The Ninth Circuit Court of Appeals agreed with Snyder, reasoning that once the IAD's guarantees for a speedy trial attached to Snyder, which they did when he was first transferred to Nevada to stand trial, that guarantee was not changed by Snyder's subsequent parole by Iowa. 17 Id. at 1453. No. ¶33 2004AP583 Pharm's argument that Snyder means the IAD continues to apply to him even after he was sent to Wisconsin to complete his sentence is not applicable because none of the guarantees to Pharm were changed by his Nevada parole. IAD's He had already been given a speedy trial in Wisconsin; he had been returned to Nevada to complete the term of incarceration Nevada sought to impose and then returned to Wisconsin for confinement. At the time of Pharm's return to Wisconsin, he had no further rights under the IAD that had not been provided. Snyder is not helpful in resolving the issues Accordingly, presented by Pharm's circumstances. ¶34 Pharm was accorded all his rights under Wis. Stat. § 976.05, which he triggered by his Request for Disposition. He was given notice that a detainer had been lodged in Nevada and he responded with a Request for Disposition. In order to meet his request, he was transported to Wisconsin to face trial for the outstanding trial; he was Wisconsin returned charges; to Nevada he was until accorded parole returned to Wisconsin after parole by Nevada. were in accord with the IAD. and a speedy he All occurrences Eesley, 225 Wis. 2d at 255 n.2. 18 was No. ¶35 return 2004AP583 Pharm also contends that Nevada had a right to his that Wisconsin did honor.12 not Again, we disagree. Nevada did not have any IAD right remaining after Pharm was returned to Nevada to complete his term of incarceration there. When Pharm was incarcerated in Wisconsin, Nevada could have triggered additional rights under the IAD if it had lodged a detainer in Wisconsin based on untried indictments, informations or complaints that were open in Nevada. done so. In fact, Nevada has never made any type of request that Pharm be returned to it.13 to the However, Nevada has not Wisconsin incarcerated, but Department the Nevada did send periodic letters of letters Corrections requested while only that Pharm was Wisconsin authorities notify Nevada authorities prior to Pharm's release. 12 The dissent echos this claim and cites Pitsonbarger v. Gramley, 103 F.3d 1293 (7th Cir. 1996) to imply that such a right exists unless Nevada waives it. Abrahamson, C.J., dissenting, ¶65 n.11. Pitsonbarger (vacated and remanded, Pitsonbarger v. Gramley, 522 U.S. 802 (1997); aff d on reh g, Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir. 1998)) does not support such an inference. In Pitsonbarger, Nevada had convicted Pitsonbarger of attempted homicide and other crimes of violence. Id. at 1296. Pitsonbarger's Nevada term of incarceration had begun, but was not completed, when he was convicted of homicide in Illinois, and Illinois imposed the death penalty. Id. It was at that point that the governor of Nevada waived the IAD right to the return of Pitsonbarger. Id. at 1300-02. In Pharm's case, there was no Nevada term of incarceration yet to be served, so there was nothing for Nevada to waive. 13 Pharm may not have standing to assert that Nevada's rights have been violated since Nevada has not requested that Pharm be returned. However, we do not address the standing question because we conclude that Wisconsin honored all Nevada's rights under the IAD. 19 No. Because the record pending release, shows we that conclude Nevada was Wisconsin aware 2004AP583 of complied Pharm's with that request. C. Chapter 980 Proceeding ¶36 As part of his objections to the ch. 980 proceeding, Pharm argues that he did not knowingly waive extradition for a ch. 980 proceeding. criminal He asserts his waivers contemplated only proceedings, and § 976.03, was violated.14 therefore, the UCEA, Wis. The UCEA details procedures to be followed when a request for extradition has been made. has made a request to extradite Pharm. III of No state Such a request is a condition precedent to application of the UCEA. ¶37 Stat. § 976.03(3). In addition, Pharm exercised his rights under Article the IAD when he untried Wisconsin charges. not at issue here. requested final disposition of his As we explained above, Article IV is An Article III request for final disposition requires "a waiver of extradition with respect to any charge or proceeding contemplated thereby . . ., and a waiver of extradition to the receiving state to serve any sentence there 14 We note that the statutory extradition process is a right conferred upon the state "to protect its own citizens or persons within its boundaries from unjust criminal actions that may be brought by a sister sovereign state." State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 317, 240 N.W.2d 626 (1976). A prisoner has no right to complain if a sovereign state waives its extradition rights. Id. at 318. Therefore, it may be that Pharm does not have standing to assert a deprivation of rights under the UCEA; however, we do not need to reach this issue since we conclude that the waiver of extradition Pharm executed is not relevant to the ch. 980 proceedings. 20 No. 2004AP583 imposed upon the prisoner after completion of the prisoner's term of imprisonment § 976.05(3)(e). untried in the sending state." Wis. Stat. Pharm's request for final disposition of his charges, using language directly from Article III, stated: I hereby agree that this request will operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against me from your state. I also agree that this request shall be deemed to be my waiver of extradition with respect to any charge or proceeding contemplated hereby or included herein, and a waiver of extradition to your state to serve any sentence there imposed upon me, after completion of my term of imprisonment in this state. I also agree that this request shall constitute a consent by me to the production of my body in any court where my presence may be required in order to effectuate the purposes of the Agreement on Detainers and a further consent voluntarily to be returned to the institution to which I am now confined. Accordingly, the UCEA has no relevance to the ch. 980 proceeding. ¶38 did However, we agree that Pharm's waivers of extradition not extend proceedings are to the civil in ch. 980 nature relation to criminal charges. proceeding. and Pharm's Chapter waiver was 980 in Nevertheless, it does not follow that Pharm's rights under the IAD preclude a ch. 980 prosecution at the conclusion of Pharm's term of incarceration. As we explained above, the IAD, including Pharm's Article III waivers, had no further application once Pharm was transported Wisconsin to begin serving his term of incarceration. 21 to At his No. 2004AP583 mandatory release date, Pharm was in no different position than any other person incarcerated in Wisconsin for violent crime that was committed in Wisconsin. a sexually That is, he could be subjected to a ch. 980 commitment proceeding if the State chose to file a ch. 980 petition. Our conclusion in this regard is no different than if Pharm had suffered another type of mental health condition during incarceration in Wisconsin that required a ch. 51 proceeding to protect him or others. IAD waivers would not prevent those proceedings from The going forward. ¶39 Furthermore, it is clear that Wisconsin jurisdiction to conduct the ch. 980 proceedings. had Chapter 980 may be applied to any person who has committed sexually violent offenses in Wisconsin and who is incarcerated in this state. See State v. Burgess, 2003 WI 71, ¶¶11-21, 262 Wis. 2d 354, 665 N.W.2d 124. jurisdiction In Burgess, we held that the circuit court had to hold a ch. 980 commitment proceeding for an enrolled tribal member incarcerated in Wisconsin for a sexually violent offense, even where the predicate criminal offense was committed on the Lac du Flambeau Reservation. Id. Our analysis in Burgess was based on Public Law (PL) 280, 18 U.S.C. § 1162, which granted Wisconsin concurrent jurisdiction over criminal offenses and certain civil claims arising on tribal land. While not directly applicable here, Burgess is evidence of the broad scope of proceedings. Wisconsin's jurisdiction to prosecute Id., ¶¶17-19 (citations omitted). 22 ch. 980 No. III. ¶40 of 2004AP583 CONCLUSION We conclude that neither the IAD nor Pharm's waivers extradition under the IAD for his prosecution and incarceration by Wisconsin precluded Wisconsin from commencing a ch. 980 commitment proceeding. Pharm's rights under the IAD and its extradition waivers were fully accorded upon his return to Wisconsin to serve his outstanding criminal sentence. point, the IAD had no further application to At that Pharm. In addition, any obligations Wisconsin had to Nevada under the IAD were concluded when Pharm was returned to Nevada to complete his term of incarceration for his Nevada convictions. Accordingly, we affirm the decision of the court of appeals. By the Court. The decision affirmed. 23 of the court of appeals is No. ¶41 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). 2004AP583.ssa Wisconsin may very well have personal jurisdiction to commence Wis. Stat. ch. 980 proceedings against Pharm, who is physically present in Wisconsin. personal The traditional rule that physical presence confers jurisdiction cases.1 civil is Because not, the however, majority without opinion exception does not in fully address the jurisdictional issue, I will not comment further. ¶42 Although it is not pertinent to a decision in this case, I feel compelled to express surprise that the State of Wisconsin wants to keep Pharm in Wisconsin as a chapter 980 sex offender when Nevada would otherwise supervision and custody over Pharm. exercise lifetime Wisconsin will have to pay 1 Manitowoc Western Co., Inc. v. Montonen, 2002 WI 21, ¶¶8, 10, 250 Wis. 2d 452, 639 N.W.2d 726. Case law suggests that a state may engage in all kinds of nefarious behavior to obtain personal jurisdiction over an individual to exercise criminal jurisdiction. Under what is known as the "Ker-Frisbie Doctrine," courts, including the United States Supreme Court, have held that people who had been forcibly removed from a foreign jurisdiction cannot challenge an indictment or conviction on the basis that jurisdiction was obtained in violation of the constitution. In short, a state might lawfully conduct criminal proceedings against a person who was kidnapped and forcefully dragged within the state's boundaries. This doctrine is so named for the two leading United States Supreme Court decisions establishing this principle: Ker v. Illinois, 119 U.S. 436 (1886), and Frisbie v. Collins, 342 U.S. 519 (1952). This court adopted this principle in State v. Monje, 109 Wis. 2d 138, 143-44, 325 N.W.2d 695 (1982), holding that even an illegal arrest does not bar the state from exercising jurisdiction to try a pending criminal charge. 1 No. costs in excess treatment as a of $100,000 committed per sex year for offender.2 2004AP583.ssa Pharm's The inpatient Wisconsin Legislative Fiscal Bureau reports the total expenditure of the state for services under chapter 980 as $30,371,600 for fiscal years 2003-2004.3 Furthermore a chapter 980 commitment is in all probability a lifetime commitment for Pharm, and thus the State is committing itself to pay Pharm's institutional expenses for a long time.4 ¶43 Pharm is now about 55 years old. The majority opinion, ¶9 n.3, obviously is concerned that Nevada and Pharm intend Pharm to spend his Nevada parole in Wisconsin. Nevada and Wisconsin are signatories to the Uniform Act (Compact) for Out-of-State Parolee Supervision, Wis. Stat. § 304.13.5 It is not clear from the record that Pharm qualifies 2 Jane Pribek, Chapter 980: Part I, Finding a Home Remains a Hot Topic, Wis. L.J., available at http://www.wislawjournal.com/archive/2005/0622/980.html. 3 See Wisconsin Legislative Fiscal Bureau, Civil Commitment of Sexually Violent Persons, Jan. 2005, available at www.legis.state.wi.us/lfb/Informationalpapers/52.pdf. 4 Very few chapter 980 sex offenders in the years since the enactment of chapter 980 have been released outright or released under supervision. From 1996, when chapter 980 proceedings first became an option, to 2004, approximately 280 individuals were civilly committed as sexually violent predators. Only approximately 40 were granted supervised release, and of those, approximately 15 had their supervised release revoked. Approximately 15 individuals were ultimately discharged from state custody. See Steve Watters, Wisconsin's Sexually Violent Persons Law Chapter 980: Presentation to the Special Committee on Sexually Violent Commitments (Sept. 28, 2004), available at http://dhfs.wisconsin.gov/sandridge/Informational%20Papers/LegCo uncil-Power%20Point.pdf. 5 Wis. Stat. 2003-04, vol. 5, at 919 (Appendix: Wisconsin Interstate Compacts (Active)). 2 No. under the Act for Wisconsin supervision. 2004AP583.ssa Moreover, the provisions of the Compact contemplate preapproval by Wisconsin of the transfer of an out-of-state parolee to Wisconsin. v. Martinez, 1995). No 198 Wis. 2d 222, 230, 542 N.W.2d 215 State (Ct. such preapproval or discussion of Pharm's App. parole under Wisconsin supervision is part of the record. ¶44 In any event, I disagree with the majority opinion that the Interstate Agreement on Detainers Act (IAD) (Wis. Stat. § 976.05 (2003-2004))6 and Pharm's criminal proceedings are not waiver of applicable extradition to for Wisconsin's prosecuting a ch. 980 action against Pharm. ¶45 Nevada) Under the IAD and the waiver, a sending state (here may send a prisoner to Wisconsin) for a criminal trial. a receiving state (here When the prisoner makes a request for final disposition under the IAD, "the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending . . . in order that speedy and efficient prosecution may be had." ¶46 Wis. Stat. § 976.05(5)(a) (emphasis added). After the criminal trial in the receiving state (Wisconsin) in which conviction is entered and a prison term is imposed, the prisoner is returned to the sending state (Nevada) to finish serving § 976.05(3)(e). the original prison sentence. Wis. Stat. After completing the original prison term in 6 All references to the Wisconsin statutes are to the 20032004 version unless otherwise noted. 3 No. 2004AP583.ssa the sending state (Nevada), the prisoner is then returned to the receiving state (Wisconsin) to serve the prison term imposed in the receiving state. ¶47 Wis. Stat. § 976.05(3)(e).7 The prisoner apparently remains in the "custody" of the sending state (Nevada) even when serving the prison sentence in the receiving state § 976.05(5)(g) states: which temporary (Wisconsin). Wisconsin Stat. "For all purposes other than that for custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state [Nevada] . . . ." ¶48 The question posed in the present case is whether at the end of the prison term in the receiving state (Wisconsin), the receiving state (Wisconsin) must return the prisoner to the sending state (Nevada) to complete parole there, or whether the receiving state (Wisconsin) may maintain custody of the prisoner solely for civil commitment. ¶49 With myopic vision, the majority opinion cannot locate a provision commanding Wisconsin to return Pharm to Nevada to serve a lifetime parole following Pharm's term of imprisonment in Wisconsin. The majority opinion misses the mark. There is ample evidence that the IAD and Pharm's waiver of extradition do not imbue Wisconsin with the authority to commit Pharm civilly 7 Wisconsin Stat. § 976.05(3)(e) requires that "[a]ny request for final disposition made by a prisoner under par. (a) shall also be deemed . . . a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner after completion of the prisoner's term of imprisonment in the sending state" (emphasis added). 4 No. 2004AP583.ssa after he completed his Wisconsin prison sentence, when he had an outstanding lifetime parole term in Nevada that Nevada did not waive. ¶50 Moreover, the purposes of the IAD expressed in the statute are undermined by the majority's interpretation. result of the majority opinion, the IAD becomes a As a device undermining certainty in a prisoner's future and a threat to the spirit of cooperation between the states that the IAD was institute ch. 980 intended to foster. ¶51 Finally, proceedings Wisconsin's against Pharm decision to contravenes Pharm's reasonable expectations under the waiver of extradition and the IAD. ¶52 For the reasons set forth, I conclude that Pharm should be returned to the Nevada authorities for lifetime parole supervision, not kept in a Wisconsin institution under indefinite ch. 980 civil commitment. I ¶53 Under Pharm's extradition waiver under Wis. Stat. § 976.05(3)(e), Pharm expressly agreed (1) to waive extradition to Wisconsin with respect to any charge or proceeding, (2) to serve any sentence there imposed upon him, after completion of his term of voluntarily imprisonment to be in Nevada, returned to the and (3) original to consent place of imprisonment. ¶54 The waiver is limited. give meaning to the limitations. 5 The majority opinion fails to No. ¶55 2004AP583.ssa The first part of the waiver is limited to a criminal proceeding in Wisconsin. No question is presented here about this provision. ¶56 The second part of the waiver is limited to serving a sentence in Wisconsin. civil proceeding. There is no waiver for any subsequent No question is presented here about this provision. ¶57 to be Under the third part of the waiver, Pharm gave consent returned to the "original place of imprisonment." I conclude that "original place of imprisonment" should be read to refer to Nevada under the two circumstances involved in the present case: (1) return to Nevada to continue imprisonment in Nevada after trial, conviction, and sentencing in Wisconsin, and (2) return to Nevada to imprisonment in Wisconsin. serve parole in Nevada after The statutory drafting could have been better but the meaning is clear. ¶58 the Regardless of the interpretation of the third part of waiver, under the IAD the prisoner remains in Nevada's custody. Wisconsin Stat. § 976.05(5)(g) provides that for "all purposes other than . . . temporary custody [defined as the period during which the receiving state tries the prisoner on criminal charges]8 . . . the prisoner shall be deemed to remain 8 Temporary custody is defined Wis. Stat. § 976.05(5)(d), as follows: in the 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 for 6 IAD, No. 2004AP583.ssa in the custody of and subject to the jurisdiction of the sending state . . . ." Furthermore, § 976.05(5)(e) provides that "at the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state." I read these provisions as barring Wisconsin's decision to commit Pharm civilly. ¶59 Nevada statutes9 and case law10 support the view that Nevada has continuing custody and jurisdiction of its parolees even when they are imprisoned in another state. prosecution on any other charge or charges arising out of the same transaction. 9 Nevada Rev. Stat. Ann. § 213.1099(3) reads in relevant part: "When a person is convicted of a felony and is punished by a sentence of imprisonment, he remains subject to the jurisdiction of the board from the time he is released on parole . . . until the expiration of the maximum term of imprisonment imposed by the court . . . ." Moreover, Nevada's custody interest in a parolee is not diminished when Nevada allows the parolee to go to another state. Nevada, for permissible reasons, may revoke parole and seek return of the parolee, even while the parolee is located in a prison in another state. See Nev. Rev. Stat. Ann. § 179.231 (expressing policy that transfer of prisoners to another state is not deemed a waiver of the right to demand their return). 10 The Nevada Supreme Court has described parole as "not set[ting] aside or affect[ing] the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution." Garnick v. Miller, 403 P.2d 850, 852 (Nev. 1965) (citation omitted). The Nevada Supreme Court has recognized a State's power to revoke a parolee's parole even when the parolee is serving a prison sentence out of state. See Kelch v. Sumner, 822 P.2d 1094 (Nev. 1991). 7 No. ¶60 2004AP583.ssa Nevada's conduct in the case at bar also reveals that it understands the IAD and Pharm's waiver of extradition the same way as I do. While Pharm was serving his 15-year sentence in Wisconsin, Nevada continued to assert its custody over Pharm. ¶61 Shortly after paroling Pharm to Wisconsin, in October 1990 Nevada sent a letter informing the Wisconsin Department of Corrections that Nevada had lifetime supervision over Pharm upon his release or transfer. The letter stated in part, "[Pharm] has been paroled to your [Wisconsin's] 'HOLD' and will remain under Nevada's parole supervision until Life. . . . Please accept this letter as a request for sixty (60) days notification prior to the subject's release or transfer. . . ." ¶62 Again continued in right February to 1991, custody over Nevada Pharm reiterated through its written correspondence to the Wisconsin Department of Corrections. ¶63 On July 23, 1997, about three months before Pharm's October mandatory release date, Nevada's written communication to the Notify paroled Wisconsin Letter," to your Department advised hold the and of Corrections, Department will remain that under entitled Pharm "Hold "has Nevada's been parole supervision for Life" and noted "it is imperative that we are notified prior to his release . . . ." Wisconsin seems to adhere to the same principle. Wisconsin Stat. § 304.06(3) provides in relevant part: "Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner . . . ." 8 No. ¶64 2004AP583.ssa On August 26, 1997, Nevada corresponded directly with Pharm, advising him of his obligations to Nevada on his release from the Wisconsin prison. ¶65 that it These communications continued to exhibit maintain a Nevada's custody understanding interest in Pharm despite the fact that Pharm was paroled to a Wisconsin prison. In addition, the communications from Nevada demonstrate that, upon Pharm's release from prison in Wisconsin, Nevada expected to exercise primary supervisory power over Pharm. Never did Nevada relinquish complete control over Pharm to Wisconsin.11 ¶66 Unfortunately, the majority opinion fails to recognize Nevada's continued interest in its parolees. Consequently, the majority the opinion extradition never waiver even should be considers read 11 in that light of IAD the and the sending Wis. Stat. §§ 976.05(3)(d), 976.05(3)(e), 976.05(5)(g). A state can waive its interest in a prisoner. In Pitsonbarger v. Gramley, 103 F.3d 1293, 1302 (7th Cir. 1996), vacated and remanded, 522 U.S. 802 (1997), aff'd on reh'g, 141 F.3d 728 (7th Cir. 1998), the Governor of Nevada specifically and explicitly waived the right to have the Nevada prisoner, Pitsonbarger, returned to Nevada. The Executive Agreement executed in accordance with the IAD stated: "IT IS ALSO AGREED that if Jimmy Pitsonbarger receives any sentence providing less than death in Missouri and the death sentence in Illinois is vacated, commuted, or otherwise permanently eliminated, he will be returned to Nevada to serve his life without possibility of parole. If one death sentence remains in effect, Jimmy Pitsonbarger will be housed in whatever state has said sentence in effect." Id. at 1300. In the instant case Nevada did not waive its rights for return, not after Pharm's trial in Wisconsin and not after Pharm completed his Wisconsin sentence. Nevada regularly asserted its continuing custody interest in Pharm. 9 No. state's continued interest, and the 2004AP583.ssa receiving state s subordinate interest, in the prisoner. II ¶67 My interpretation of the waiver of extradition and the IAD is supported by the purposes of the IAD and the policies informing it. Wisconsin Stat. § 976.05(9) states that the IAD "shall be liberally construed so as to effectuate its purposes." The United States Supreme Court has stated that when "the purposes of the Agreement and the reasons for its adoption" are implicated, there is simply "no reason to give restrictive meaning" to the Agreement's terms.12 an unduly The majority opinion has not liberally construed the IAD to effectuate its purposes. ¶68 Moreover, the majority opinion has failed to look beyond a single purpose of the IAD, namely providing resolution of pending detainers, to consider what other policy interests inform the IAD and its proper interpretation. By ignoring the purposes of the IAD, the majority opinion fails to give full meaning to the text of the IAD. ¶69 Brennan, drafting As Jr. and United States explained, enactment Supreme "Three of Court distinct the Justice goals Agreement: William generated (1) J. the definitive resolution of potential terms of incarceration so that prisoners 12 United States v. Mauro, 436 U.S. 340, 361-62 (1978). "Since the [IAD] is remedial in character, it should be construed liberally in favor of the prisoner." Carchman v. Nash, 473 U.S. 716, 735 n.1 (1985) (Brennan, J., dissenting) (citing Council of State Governments, Handbook on Interstate Crime Control 134 (1978 ed.)). 10 No. and prison administrators can know with 2004AP583.ssa certainty when a prisoner is likely to be released, (2) speedy disposition of detainers to ensure that those filed for frivolous reasons do not linger, obtain and (3) reciprocal persons incarcerated ease in for other signatory States to jurisdictions for disposition of charges of wrongdoing, thereby superseding more cumbersome extradition procedures."13 ¶70 These goals are codified in the text of the IAD: Wis. Stat. § 976.05(1). ARTICLE I. The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. 13 Carchman v. Nash, 473 U.S. 716, 737 (1985) (Brennan, J., dissenting) (citing United States v. Mauro, 436 U.S. 340, 359-64 (1978); Council of State Governments, Suggested State Legislation, Program for 1957, 74-79 (1956)). This court has previously discussed these three goals as only two goals. In State v. Eesley, 225 Wis. 2d 248, 261, 591 N.W.2d 846 (1999), for instance, this court announced that: The IAD serves two express purposes. The first is to protect prisoners by "encourag[ing] the expeditious and orderly disposition of such [outstanding] charges [against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." Wis. Stat. § 976.05(1). The second purpose is to provide "cooperative procedures" to effectuate a more uniform and efficient system of interstate rendition. (Citations omitted.) Whether the purposes are discussed in terms of two goals or three, the point remains that the majority opinion fails to look beyond the single goal of providing resolution of pending detainers to consider how the other policy interests inform the IAD and its proper interpretation. 11 No. 2004AP583.ssa Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures. ¶71 The first goal of the IAD, to promote certainty for the prisoner, is undermined by the majority opinion. A prison sentence of a definite length imposed by the receiving state can, as a result of the majority opinion, be turned into an indefinite civil commitment. indefinite civil By allowing Wisconsin to pursue commitments of out-of-state prisoners physically present in the state only under the IAD, the majority opinion allows the IAD to become a tool for injecting new uncertainties into a prisoner's life. ¶72 The third goal of the IAD, to increase cooperation between states and allow for smoother transfer of custody of out-of-state opinion. prisoners, is also undermined by the majority The majority opinion permits Wisconsin to obstruct unilaterally the return of Pharm to Nevada, impairing the spirit of cooperation among the states that the IAD intended to foster. ¶73 I conclude that the majority opinion's interpretation of the IAD is not a liberal interpretation and contravenes the express purposes of the IAD and the policies informing it. III ¶74 Further, proceedings Wisconsin's against Pharm decision contravenes 12 to institute Pharm's ch. 980 reasonable No. expectations under the waiver of extradition and 2004AP583.ssa the IAD.14 Wisconsin's sexual predator law was not in existence when the waiver was executed and the IAD was adopted. In fact, chapter 980 was not enacted until 1994, seven years after Pharm first requested disposition of the pending Wisconsin detainer. There was legal no predecessor authority for statute Pharm's that indefinite would civil have provided commitment when Pharm effectuated his waiver.15 ¶75 When Pharm requested final disposition of any pending charges in Wisconsin, he effectuated a waiver of extradition for the sole purpose of disposing with Wisconsin's Wisconsin's criminal charge, nothing more. detainer and He stated that his request "shall be deemed to be my waiver of extradition with respect to any charge or proceeding contemplated hereby or included herein, and a waiver of extradition to your state to 14 In a colloquy with the circuit court, Pharm stated his expectations relating to the transfer and waiver of extradition. "What I'm trying to understand, what I'm trying to get everybody else to understand is I'm a Las Vegas prisoner. I was extradited here to serve out a sexual assault charge . . . . I'm supposed to be returned to my home state. You're all charging me with 980 [sic] didn't have any bearing on my intrastate [sic] compact agreement. I only agreed to come here to serve out a sexual assault charge." R. 5:6-15. 15 Wisconsin Stat. ch. 975 did permit Wisconsin to seek a civil commitment for persons convicted of certain enumerated sexual offenses, including sexual assault of a child. However, the provisions of ch. 975 were restricted to proceedings commenced prior to 1980. The State did not have authority under this provision to civilly commit Pharm. 13 No. 2004AP583.ssa serve any sentence there imposed upon me, after completion of my term of imprisonment in this state [Nevada]."16 ¶76 Pharm's proceedings or waiver anything did akin not to contemplate them after chapter Pharm 980 served his prison term in Wisconsin. ¶77 In proceedings sum, Wisconsin's against Pharm decision to contravenes institute Pharm's ch. 980 reasonable expectations under the waiver of extradition and the IAD. ¶78 For all the foregoing reasons, I dissent. ¶79 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion. 16 Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints. This form was signed by Pharm on October 10, 1987, pursuant to Wis. Stat. § 976.05(3)(e). 14 No. 1 2004AP583.ssa

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