The State of Washington, Petitioner, v. Ryan James Peeler, Respondent, 183 Wash. 2d 169

Gordon McCloud, J. ¶1 The intrastate detainers act (IDA),

chapter 9.98 RCW, requires the State to bring a Washington State prisoner to trial for any untried charge within 120 days of the prisoner’s request for a final disposition. RCW 9.98.010. Ryan Peeler was serving a prison sentence on a Snohomish County charge at the Washington Corrections Center (WCC) when he requested a final disposition of an untried charge in Skagit County. By the time that the Skagit County prosecutor received Peeler’s final disposition request, however, the Department of Corrections (DOC) had transported him to the King County jail to await trial on unrelated charges.

Peeler was not returned to WCC until well after the Skagit County prosecutor received his request. ¶2 The State failed to bring Peeler to trial in Skagit County within 120 days of receiving his final disposition request. We affirm the Court of Appeals’ decision that even though Peeler was physically located in King County when the State received his final disposition request, his request was valid and the State failed to meet the 120-day deadline to bring him to trial in Skagit County. We affirm.

FACTS ¶3 The parties do not dispute the relevant procedural facts, which we summarize chronologically below: See State v. Peeler, noted at 179 Wn. App. 1038, 2014 WL 720879, at *1, 2014 Wash. App. LEXIS 431, at *1. ¶4 The Skagit County Superior Court denied Peeler’s motion to dismiss, explaining, “For RCW 9.98.010 to apply[,] the person must be imprisoned and available for transport.” Clerk’s Papers (CP) at 86. That court correctly found that Peeler was physically located in King County, not WCC, when the Skagit County prosecutor received his first request for final disposition.

The superior court therefore concluded that Peeler was not available for transport from WCC at that time, that that was the time period that counted for purposes of RCW 9.98.010, and, hence, that the 120-day time limit did not begin. CP at 85-86. ¶5 Peeler was then convicted by jury of second degree assault with a special verdict that the victim’s injuries substantially exceeded the level of bodily harm necessary to constitute “substantial bodily harm.” CP at 112. The superior court imposed an exceptional sentence of 100 months. CP at 272. ¶6 The Court of Appeals reversed.

Peeler, 2014 WL 720879, at *1, 2014 Wash. App. LEXIS 431, at *1. It held that Peeler’s first final disposition request effectively triggered the 120-day period on October 26, 2011, when the Skagit County prosecutor and superior court received it, and that the State did not timely bring him to trial. Peeler, 2014 WL 720879, at *5, 2014 Wash. App. LEXIS 431, at *11. The Court of Appeals remanded to the superior court with instructions to dismiss the Skagit County charge with prejudice. Id. ¶7 We granted the State’s petition for review. State v. Peeler, 181 Wn.2d 1006, 332 P.3d 985 (2014). ANALYSIS I.

Standard of Review ¶8 This case presents a question of statutory

interpretation, which we review de novo. Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015) (quoting State v. Veliz, 176 Wn.2d 849, 853-54, 298 P.3d 75 (2013)). When interpreting a statute, our primary “ ‘objective ... is to ascertain and carry out the legislature’s intent.’ ” Ralph v. Dep’t of Nat. Res., 182 Wn.2d 242, 248, 343 P.3d 342 (2014) (quoting Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004)).

We determine legislative intent from the statute’s plain language, “considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole.” Ass’n of Wash. Spirits, 182 Wn.2d at 350 (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). II. The IDA,

Chapter 9.98 RCW, Gives Prisoners the Right To Request a Trial on Untried Charges within 120 Days ¶9 The State argues that Peeler’s initial request for final disposition of the untried Skagit County charge did not meet the IDA’s requirements. The State concludes that because Peeler’s request was invalid, the 120-day time limit did not apply and Peeler’s trial was timely. Suppl. Br. of Pet’r at 1, 8-10,12.

The Court of Appeals, on the other hand, held that Peeler’s request was valid and that the State failed to bring him to trial within 120 days of receiving his valid request, warranting dismissal of the Skagit County charge with prejudice. Peeler, 2014 WL 720879, at *5, 2014 Wash. App. LEXIS 431, at *16. ¶10 The IDA gives Washington State prisoners the right to request a trial on untried charges within 120 days of the request. State v.

Morris, 126 Wn.2d 306, 310, 892 P.2d 734 (1995); RCW 9.98.010(1). ¶11 The procedures for making that final disposition request, honoring that request, and remedying a violation of the right to have such a request honored are provided by statute. RCW 9.98.010 states,

(1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he or she shall be brought to trial within one hundred twenty days after he or she shall have caused to be delivered to the prosecuting attorney and the superior court of the county in which the indictment, information, or complaint is pending written notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the indictment, information, or complaint: PROVIDED, That for good cause shown in open court, the prisoner or his or her counsel shall have the right to be present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The request of the prisoner shall be accompanied by a certificate of the superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the indeterminate sentence review board relating to the prisoner.

(2) The written notice and request for final disposition referred to in subsection (1) of this

section shall be given or sent by the prisoner to the superintendent having custody of him or her, who shall promptly forward it together with the certificate to the appropriate prosecuting attorney and superior court by certified mail, return receipt requested. ¶12 This statute provides a two-stage process: First, a prisoner makes a request for a speedy and final disposition of untried charges, which “ ‘shall be given or sent by the prisoner to the superintendent having custody of him’.” Morris, 126 Wn.2d at 310 (quoting RCW 9.98.010(2)).

Second, the superintendent who has custody of the prisoner forwards both this request and a certificate containing particular details to the appropriate prosecuting attorney and superior court. Id. (citing RCW 9.98.010(2)). ¶13 This statute also provides a strict time limit and remedy. It specifies that the prosecutor’s and the superior court’s actual receipt of the request triggers the 120-day time limit. Id. at 313 (citing RCW 9.98.010(l)-(2)).

The statutory remedy is clear and harsh: if the State fails to bring the prisoner to trial within 120 days of the prosecutor’s and the superior court’s receipt of the final disposition request, “no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” RCW 9.98.020. ¶14 Thus, as this court has recognized — and as the Court of Appeals in this case held — the prosecutor has the responsibility to ensure that defendants are timely brought to trial.

Morris, 126 Wn.2d at 314. III. Peeler Satisfied the Requirements Described in the IDA’s Plain Language ¶15 In this case, Peeler’s first final disposition request met all of the statutory requirements. The first step that the prisoner must take to request final disposition, according to the statute, is to submit a notice and request for final disposition to the superintendent having custody of him. Id. at 310 (citing RCW 9.98.010(2)).

Peeler completed that step for requesting final disposition of the Skagit County assault charge when, while imprisoned at WCC on a Snohomish County charge, he completed a “Notice of Place of Imprisonment and Request for Final Disposition of Untried Indictment, Information or Complaint (RCW 9.98.010)” and submitted it to the WCC superintendent, who had custody of him. CP at 18, 84. Peeler’s request also met the requirements for the second step of the process for requesting final disposition of the Skagit County charge.

That second step required the superintendent having custody of Peeler to forward Peeler’s final disposition request together with a certificate containing various details to the appropriate prosecuting attorney and superior court. Morris, 126 Wn.2d at 310 (citing RCW 9.98.010(2)).

On October 24, 2011, WCC completed the certificate of inmate status, which correctly stated Peeler’s term of commitment for his sentence on the Snohomish County charge, time already served and time remaining to be served on the sentence, amount of good time earned, date of parole eligibility, and any relevant decisions of the indeterminate sentence review board. CP at 19; RCW 9.98.010(1). WCC then sent the request and the certificate to the Skagit County prosecutor and superior court. Morris, 126 Wn.2d at 310 (citing RCW 9.98.010(2)).

The prosecutor and the superior court received them on October 26, 2011, which commenced the 120-day time limit. Id. at 313; CP at 85, 283-84. The statute contains no additional steps or requirements for completing a valid final disposition request. The State failed to bring Peeler to trial by February 23, 2012, when the 120-day time limit expired. ¶16 Accordingly, in October 2011, Peeler made a valid disposition request of the Skagit County charge while serving his sentence on the Snohomish County charge. The State failed to honor this request when it did not timely bring him to trial.

The appropriate remedy for the State’s failure to meet its statutory obligation was to dismiss the Skagit County charge with prejudice. RCW 9.98.020. IV. RCW 9.98.010 Imposes No Physical Location Requirement ¶17 Although Peeler complied with all of the enumerated procedural requirements for a valid disposition request, the State and the dissent seek to insert an additional requirement into RCW 9.98.010 based on the prisoner’s physical location. We decline to write this additional requirement into the statute. A.

Notice of the Place of Imprisonment ¶18 The State acknowledges that Peeler was physically located at WCC when he submitted his notice of his place of imprisonment. Suppl. Br. of Pet’r at 8. But the State claims that Peeler’s final disposition request became complete only when WCC completed the certificate of inmate status, which occurred while he was in King County. Id. at 9.

Thus, the State asserts, “Peeler was no longer in the location where he provided the ‘written notice of the place of his or her imprisonment,’ ” and that “Peeler was no longer available to have a proper request from ‘the superintendent having custody of him or her’ since he was no longer in that prison.” Id. ¶19 The State cites the statutory language “written notice of the place of his or her imprisonment” to support its reading of RCW 9.98.010.

But contrary to the State’s assertions, RCW 9.98.010 does not require that a prisoner be physically present in the prison where he is serving a term of imprisonment at the time that the superintendent submits the request and the prosecutor and superior court receive it. Rather, the statute requires a prisoner to “give[ ] or sen[d]” a notice and request “to the superintendent having custody of him.” RCW 9.98.010(2) (emphasis added). This is obviously a reference to who has “custody” of the prisoner when the prisoner “gives or sends” his request “to” that superintendent.

On October 7, 2011, Peeler fulfilled this requirement by providing a disposition request that stated accurately, “I am a prisoner confined at the Washington Corrections Center.” CP at 18. He then forwarded this request to WCC, which had custody of him at that time. CP at 84. Peeler complied with all of the IDA’s requirements described in its plain, unambiguous language. We decline to insert additional language or requirements in an unambiguous statute when the legislature chose not to do so. State v.

Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). ¶20 The State’s reading of the statute also contradicts the legislature’s intent that the act apply “whenever” a person has entered into a term of imprisonment and “whenever during the continuance of the term of imprisonment” the prisoner faces pending untried charges. RCW 9.98-.010(1); Webster’s Third New International Dictionary 2602 (2002) (“whenever” means “at any or all times that: in any or every instance ... at whatever time : no matter when”). The State’s

interpretation would defeat the statute’s purpose because inmates have no control over the facility in which they serve their sentences and can be moved without advance notice. See State v. Silva, 106 Wn. App. 586, 592, 24 P.3d 477 (2001) (court must avoid “strained or absurd results” that defeat the purpose of a statute). Because no court suspended or vacated Peeler’s prison sentence on the Snohomish County charge, he was still a prisoner continuing his term of imprisonment while he was temporarily in King County. See RCW 72.68.010 (permitting prisoner’s “transfer to another institution”); State v.

Bishop, 134 Wn. App. 133, 139, 139 P.3d 363 (2006) (defendant’s time spent awaiting resentencing after removal from a drug rehabilitation program did not remove her from her original sentence; defendant remained under her term of imprisonment when she requested disposition of Washington charges under the interstate agreement on detainers,

chapter 9.100 RCW). The State could have sought a continuance within the 120-day period under RCW 9.98.010(1) to enable the superior court to retain jurisdiction over Peeler’s assault case, but it did not do so. ¶21 Again, the IDA’s plain language requires that the prisoner only accurately indicate the location from which the prisoner makes the request at the time that he or she submits it; the IDA does not require a prisoner to be physically present at the same site from which the prisoner makes the request at any other time. RCW 9.98.010(1).

The State seeks to distinguish between the prisoner’s physical location on the date that the prisoner submits a request for final disposition and the date that this request is completed or received. But the statute’s plain language creates no such distinction. As stated above, we will not insert language into an unambiguous statute that the legislature chose not to include. Delgado, 148 Wn.2d at 727. B.

Superintendent Having Custody ¶22 Building on its attempt to insert a continuing physical location requirement into the IDA, the State claims that Peeler’s request was inaccurate and therefore invalid because, when the State received it, Peeler “was no longer in the custody of the Superintendent of [DOC] but in pretrial custody of another county.” Suppl. Br. of Pet’r at 9-10 (boldface omitted).

Specifically, the State argues that because Peeler was in King County when the State received his demand, WCC lacked custody of him and the request failed to identify his location accurately, and therefore his request was invalid. Id.

The State further argues that Peeler’s request failed to comply with RCW 9.98.010(2), claiming that WCC “could not have properly issued Peeler’s Certificate of Inmate Status on October 24, 2011, because Peeler was no longer in [WCC] but was in King County.” Id. at 12. ¶23 The State relies on the statutory language requiring the prisoner to submit written notice of the place of imprisonment to “the superintendent having custody of the prisoner,” RCW 9.98.010(1), and also the statute’s requirement of “written notice and request for final disposition referred to in subsection (1) of this

section shall be given or sent by the prisoner to the superintendent having custody of him,” RCW 9.98.010(2), to support its argument that Peeler’s temporary absence from WCC interrupted the term of imprisonment and WCC’s custody over Peeler under the IDA. This

interpretation depends on the notion that we should construe “custody” in the IDA strictly to mean “physical custody.” But “custody” generally means “care and control,” not necessarily physical location. Black’s Law Dictionary 467 (10th ed. 2014). DOC certainly thought that it still had “custody” over Peeler when he was serving his sentence but transferred out to King County. DOC records tracked Peeler’s “external movement” to King County, noting that he was “Out To Court” while he was serving his sentence on the Snohomish County charge. CP at 36.

Although movements documented in DOC records include “Custody Change,” these records indicate no custody changes when Peeler was “Out To Court” in King County. Id. These notations are consistent with the fact that “the state political system ... remains in legal custody of the prisoner” even after transfer to an out-of-state institution. In re Pers. Restraint of Young, 95 Wn.2d 216, 234, 622 P.2d 373 (1980) (Utter, C.J., concurring).

If DOC retains custody of a prisoner even after the prisoner’s transfer out of state, then we can infer that DOC maintains legal custody of the prisoner after transfer to an in-state institution. See also Jones v. Cunningham, 371 U.S. 236, 241, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963) (state prisoner on parole remains in “custody” for purposes of federal habeas corpus 28 U.S.C. § 2241 “in custody” prerequisite); Maleng v. Cook, 490 U.S. 488, 491-93, 109 S. Ct. 1923, 104 L.

Ed. 2d 540 (1989) (“in custody” prerequisite to filing federal habeas corpus petition does not require physical confinement; prisoner is “in custody” of state even though serving time in different institution on prior or subsequent sentence). Thus, the WCC superintendent retained “custody” over Peeler even while he was “out to court” in King County and not physically located in WCC. ¶24 The State failed to bring Peeler to trial within 120 days of receiving his valid disposition request.

Because the Skagit County Superior Court granted no continuances, the mandatory language in RCW 9.98.020 commanded that the court “shall” dismiss the Skagit County charge with prejudice. ¶25 We recognize that ruling in Peeler’s favor might raise practical concerns about prisoners facing charges in multiple counties having charges dismissed because the State is unable to timely transport the prisoner among the various counties. Suppl. Br. of Pet’r at 12-15.

Indeed, when a prisoner faces trials in multiple counties, nothing in the IDA prevents the prisoner from requesting multiple final dispositions simultaneously, arguably requiring the State to transport the prisoner among counties within a short period of time for trial or for a continuance hearing. RCW 9.98.010(1). The State is therefore correct that this is inconvenient and expensive. But “we do not rewrite [the law] to insert our own policy judgments.” In re Custody of B.M.H., 179 Wn.2d 224, 266-67, 315 P.3d 470 (2013) (Wiggins, J., dissenting in part) (citing Bain v. Metro. Mortg.

Grp., Inc., 175 Wn.2d 83, 109, 285 P.3d 34 (2012); Sedlacek v. Hillis, 145 Wn.2d 379, 390, 36 P.3d 1014 (2001)). The State’s argument about balancing of convenience and economy with timely and orderly disposition of charges is best directed to the legislature. CONCLUSION ¶26 The State failed to bring Peeler to trial on the Skagit County charge within 120 days of receiving his final disposition request that satisfied the requirements of RCW 9.98.010. We affirm the Court of Appeals’ decision reversing Peeler’s conviction and judgment and remanding to the Skagit County Superior Court to dismiss with prejudice.

Johnson, Owens, Stephens, and Wiggins, JJ., concur. The harshness of the remedy of dismissal with prejudice demonstrates the high value that the legislature placed on encouraging the expeditious and orderly disposition of charges and determination of the proper status of any and all detainers based on untried charges. See State v. Morris, 74 Wn. App. 293, 297, 873 P.2d 561 (1994), aff’d on other grounds, 126 Wn.2d 306 (discussing IDA’s purpose); State v. Flinn, 154 Wn.2d 193, 199 n.1, 110 P.3d 748 (2005) (noting the “harsh remedy of dismissal with prejudice” for failure to comply with time for trial rules).

We deny Peeler’s motion to strike the brief of amicus curiae Washington Association of Prosecuting Attorneys (WAPA) citing cases outside of Washington to argue that we should toll the 120-day time limit during any time that a defendant is “unable to stand trial” due to proceedings in another jurisdiction. Br. of Amicus Curiae WAPA at 7-11. We note that the Court of Appeals dismissed a similar argument that the State raised following oral argument in that court. Peeler, 2014 WL 720879, at *4 n.4,2014 Wash. App. LEXIS 431, at *13 n.4.

We also deny Peeler’s motion to supplement the record in response to this amicus brief. Peeler seeks to admit documents that he claims establish procedural facts related to the amicus WAPA’s tolling argument. Resp’t Mot. To Strike New Arguments Raised in Amicus Brief Filed by WAPA or Permit Supplementation of the R. at 4-7. Peeler fails to meet the requirements of RAP 9.11 to permit supplementation of the record. Procedural facts relating to Peeler’s transport to and from King County are already available in the record.

CP at 39-42, 84 (Peeler’s transport order in King County entered September 28, 2011), 36, 44, 82 (Peeler transported from WCC to King County on October 18, 2011), 48-51, 85 (Peeler’s resolution of King County cases by plea to a term of imprisonment). The dissent also argues that the statute’s purpose is “to facilitate transportation and the processing of the prisoner’s case within the 120-day period” and then concludes that “[f]or the statute to serve its purpose, the prosecuting attorney must have correct notice of the location of the prisoner when the request is received.” Dissent at 191-93.

This is an attempt to insert a physical location requirement into the statute, despite the fact that the legislature did not do so. Note that this case does not present the question of whether a prisoner who had already been transported to a county jail, and who “gives” or “sends” his request from there, fulfills the statute’s requirements. Peeler was at WCC when he submitted his request. The dissent expresses concern that the defendant might be unavailable to appear at a continuance hearing if he is not available to be transported for trial. Dissent at 194.

While this is a valid concern, we are in no position to override the legislature’s determination that the opportunity for a court to grant “any necessary or reasonable continuances” provides an appropriate means of avoiding the harsh remedy of dismissing the charges.

RCW 9.98.010(1). [W]henever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he or she shall be brought to trial within one hundred twenty days after he or she shall have caused to be delivered to the prosecuting attorney and the superior court of the county in which the indictment, information, or complaint is pending written notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the indictment, information, or complaint. Id. (emphasis added).

The dissent concedes this point. It acknowledges that “while in King County, Peeler remained in the formal custody of DOC because he continued to serve a term of imprisonment for his Snohomish County conviction.” Dissent at 192. Its conclusion thqt “custody” means something different in the statute at issue ignores the legislature’s chosen language. The only case law that the State cites to support its contentions is not persuasive. The State cites State v. Slattum, 173 Wn.

App. 640, 655, 295 P.3d 788 (2013), noting that the case “evaluated the phrase ‘term of imprisonment’ under RCW 10.73.170 and compared it to that phrase in . . . RCW 9.98.010(1),” and explained that this language meant “ ‘confinement in a particular location.’ ” Suppl. Br. of Pet’r at 7-8 (quoting Slattum, 173 Wn. App. at 655). But the “particular location” identified in the statute, as the Court of Appeals noted in Slattum, is “a penal or correctional institution of this state.” Slattum, 173 Wn. App. at 655 (emphasis omitted); RCW 9.98.010(1).

Here, Peeler was serving a term of imprisonment at the WCC, a state correctional facility, when he initiated his final disposition request. The State also cites State v. Rising, 15 Wn. App. 693, 695, 552 P.2d 1056 (1976), State v. Rolax, 7 Wn. App. 937, 940, 503 P.2d 1093 (1972), and State v. Johnson, 79 Wn.2d 173, 176, 483 P.2d 1261 (1971), for the proposition, “ ‘A defendant’s formal request is a prerequisite to the commencement of the running of the 120-day time period.’ ” Suppl. Br. of Pet’r at 8. And the State cites State v. Young, 16 Wn.

App. 838, 840, 561 P.2d 204 (1977), for the notion, “Compliance with the requirements of RCW 9.98.010 is required in order to claim the benefit of the 120-day time period resulting in dismissal under RCW 9.98.020.” Id. These propositions are certainly correct. Indeed, as we discussed, because Peeler’s formal request for final disposition in October 2011 complied with the IDA, the prosecutor’s receipt of this request commenced the 120-day time period. Thus, Peeler can claim the benefit of the 120-day time period for dismissal of the Skagit County charge. See Erection Co. v.

Dep’t of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993) (“It is well settled that the word ‘shall’ in a statute is presumptively imperative and operates to create a duty.” (collecting cases)). While we agree with the dissent that these practical and policy concerns are important, dissent at 194, we disagree that these concerns can override the plain, unambiguous statutory language.