NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@ vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609

- 0801 , of any errors in order that corrections may be made before this opinion goes to press.

201 7 VT 50
No. 20 17

- 110
James D. Perron Supreme Court On Appeal from v. Superior Court, Rutland Unit , Civil Division Lisa Menard, Commissioner May Term, 2017

Helen M. Toor , J. Matthew F. Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Plaintiff

- Appellant. David Tartter, Deputy State’s Attorney, Montpelier, for Defendant

- Appellee.

PRESENT: Reiber, C.J., Skoglund , Robinson , Eaton and Carroll , JJ.
¶ 1. CARROLL, J. The State of New York seeks to extradite p e titioner James Perron , alleging that he has a sentence to serve in that state following his conviction for grand larceny. Petitioner was initially detained on a prerequisition warrant , but Vermont’ s G overnor has since issued t wo separate warrants for peti tioner’s arrest

. The first authorized petitioner’s arrest as a fugitive charged by New York with grand larceny who fled justice in that state and is currently in Vermont. The second states that petitioner escaped confinement and failed to report for serv ice of the sentence imposed by New York. The trial court denied petitioner’s prere quisition writ of habeas corpus and subsequently also denied his challenge to the G overnor’s warr ants . Petitioner now appeals the trial court’s ruling. We affirm.2

¶ 2. In 2014, petitioner was indicted in Westchester County, New York, for several theft and fraud

- related crimes. While he was released on bail pending trial on th ose charges, petitioner was taken into custody by federal agents and indicted on an unrelated wire fraud charge in Florida. New York s tate took custody of petitioner while his federal case was pending and petitioner entered a plea to one count of third

- degree grand larceny. Petitioner was sentenced to two

- to

- four

years imprisonment on the state charge. Pe titioner was then r eturned to federal custody and subsequently convicted. T he U.S. District Court for the Southern District of Florida sentenced petitioner to thirty months’ imprisonment on the federal charge. The sentencing documents were silent as to w hether the sentence would be served concurrently with or consecutive to the New York sentence. ¶ 3. Petitioner completed his federal sentence in the federal correctional institute in Berlin, New Hampsh ire

. U pon completion of his federal sentence, petitioner wa s taken into custody by the State of New Hampshire on a New York warrant

. In an extradition proceeding, the New Hampshire court found that the New York paperwork did not comply with New Hampshire’s extradition requirements, though that court’s decision do es not explain how the paperwork was deficient. The State of New Hampshire released p etiti oner on January 25, 2017

. Shortly thereafter, Vermont state police received notice that petitioner had an extraditable New York arrest warrant outstanding and that he was currently in Vermont . Petitioner was arrested on a prerequisition warrant and held in a Vermont correctional facility. ¶ 4. Petitioner filed a writ of habeas corpus, which the trial court denied. Since his initial arrest in the state, Vermont’ s Gover nor has issued two extradition warrants fo r petitioner; petitioner unsuccessfully challenged both of these in the trial court. Petitioner now appeals the trial court’s determination that the Governor’s warran t s meet prima facie requirements for extraditio n , arguing that the documents produced by New York fail to show that he has a remaining3

sentence to serve in that state and that he is not a “fugitive” as that term is used in an extradition

context

.  ¶ 5. We begin by noting, as we hav e before, the constraints that b ind our authority when

we are asked to review another state’s extradition request. In re Ladd , 157 Vt. 270, 272, 596 A. 2d 1313, 1314 (1991). The U.S. Constitution places limits on the sovereign authority of the states where necessary to “ ‘ the Fram ers’ conception of national identity and Union. ’ ” In re LaPlante , 2014 VT 79, ¶ 5, 197 Vt. 189, 101 A.3d 173 (quoting California v. Sup. Ct. of Cal., San Bernardino Cty. , 482 U.S. 400, 405 (1987)). Article IV’s Extradition Clause is one such l imit:

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on D emand of the executive Authority of the State from which he [or she] fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

U.S. Const., a rt. IV, § 2, cl. 2. T he Extradition Clause “articulate[s], in mandatory language, the concepts of c omity and fu ll faith and credit,” and its purpose is to bring criminal offenders to justice in the states where they have offended as quickly as possible. Michigan v. Doran , 439 U.S. 282, 287

- 88 (1978). T o further the administration of justice in the many states, an individual state must tender an offender or alleged offender to the state from whence he or she has fled upon the request of that state’s executive authority. See id

. ¶ 6. But d espite its mandatory language and purpose, the Extradition Clause is not self

executing. To that end, Congress adop ted the Extradition Act of 1793, which , as codified, requires that a state, upon th e request of a sister

- state, secure a “fugitive from justice” when an indictment or affidavit charging the fugitive with a crime committed in the demanding state accompanies the

 We note that petitioner challenges whether he has a remaining New York sentence to serve only as to the second Governor’s warrant. Petitioner argues that he is not a “fugitive” for purposes of both warrant s .4

request. 18 U.S.C. § 3182; see also Sup. Ct. of Cal. , San Bernardino Cty. , 482 U.S. at 406

- 07 (explaining that early dispute between Pennsylvania and Virginia led President Washing ton to seek, and obtain, law regulating extradition). It is now, t hough it was not always, settl ed law that the Extradition Act permits federal courts to require that state officials comply with the Act’s, and thereby the Extradition Clause’s, demands. See Puerto Rico v. Branstad , 483 U.S. 219, 224

- 29 (1987) (abandoning rule first adopted in Kentuck y v. Dennison , 65 U.S. 66, 24 How. 66 (1860), when federal power was “at it s lowest ebb” on eve of Civil War, that asylum state’s obligation to deliver fugitive to demanding state was “moral” rather than “mandatory and compulsory” (quoting
Dennison , 65 U.S . at 107, 24 How. at 107)). We are, therefore, bound not only by the Constitution’s own language, but also by a federal law in existence since the nation’s earliest days. ¶ 7. We are, of course, also bound by our own state laws

—here, the Uniform Criminal Extradition Act (UCEA) , adopted by Vermont in 1933. 1933, No. 36 (Adj. Sess.) ( codified as amended at 13 V.S.A. §§ 4941

- 4969 )

. The UCEA ’s purpose was to implement the requirements of the Extradition Clause. Lovejoy v. State , 148 Vt. 239, 243, 531 A.2d 9 21, 924 (1987). Section 4943 (b) of Title 13 provides that Vermont’s executive authority shall not issue a n extradition

warrant unless the demanding state presents documents showing: (1) that the accused was in the demanding state at the time of the crimin al offense and subsequently fled; (2) the accused is currently in Vermont; and (3) the accused is “charged

. . . with having committed a crime under the laws of that state or that he or she has been convicted of a crime in that state and has escaped from c onfinement or broken the terms of his or her bail, probation or parole.” The demanding state’s burden to produce documents showing the three points listed in § 4943(b) (3) is “minimal,” though “not nonexistent.” In re Ladd , 157 Vt. at 272

- 73, 596 A.2d at 1314. ¶ 8. The U.S. Supreme Court has emphasized that extradition is “a summary and mandatory executive proceeding” and the Clause does not permit an asy lum state to inquire into the merits of the charge against an offender. D oran , 439 U.S. at 288

- 90. Once a governor has5

issued a warrant for extradition , the asylum state ’s courts may only consider four questions: (1) whether the documents accompanying the writ are facially in order; (2) whether the person held has, in fact, been charged with a cri me in the demanding state; (3) whe ther the person held is the person named in the writ; and (4) whether the person held is a fugitive. Id . at 289. Furthermore, an executive writ of extradition is prima facie evidence that both constitutional and statutory requirem ents are met. Id

. ¶ 9. Thus, o ur only task when asked to review an extradition request is to “ensure the validity of the requisition warrant and procedural compliance with our extradition statute, and we will not look behind these documents

. . . . ” In re L add , 157 Vt. at 272, 596 A.2d at 1314 (citation omitted). And it follows that, because our review of an extradition request is limited to the writ’s documentation and whether that documentation meets statutory requirements , o ur review of a Governor’s Writ of Extradition is de novo. In re LaPlante , 2014 VT 79, ¶ 6 n .3. ¶ 10. Having outlined the limits of our authority when reviewing a request for extradition, we turn now to petitioner’s arguments. Petitioner argues first that the documents submitted by the
Stat e of New York in support of that state’s request for petitioner’s extradition do not show that he has a remaining sentence to serve because it is not clear whether the New York and federal sentences were to be served concurrently or consecutively

. We disa gree. ¶ 11. Section 4943(a) of Title 13 requires that an extradition request be accompanied by an indictment found , an information supported by affidavit, or an affidavit “made before a magistrate,” and either a warrant or a judgment of conviction or of sentence imposed “together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his or her bail, probation or parole.” In this case, the Governor of New York’s extraditi on request is supported by an affidavit from a New York assistant district attorney, which alleges that petitioner wa s convicted of grand larceny, sentenced to an indeterminate term of two

- to

- four years’ imprisonment, and has not served that6

sentence. That affidavit is, in turn, supported by transcripts of petitioner’s state sentencing hearing
and the federal judgment

. ¶ 12. In the absence of a definite statement in the sentencing document, 18 U.S.C. § 3584 controls whether sentences are concurrent or consecu tive. S ubsection (a) of the statute provides that “ [i]f multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a)

. Terms imposed at the same time are presumed, in the absence of either contrary statement or statutory prohibition, to run concurrently. Id . But “ [m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Id

. ¶ 13. Here, p etit i oner was sentenced in New York and then promptly delivered to federal authorities for sen tencing on a federal charge in a Florida dist rict court. He did not begin serving his state sentence before his federal sentence was delivered. The New York sentencing judge explicitly and repeatedly stressed during the sentencing hearing that only the federal court had the authority to determine w hether its sentence would run concurrently with or consecutively to the New York sentence

. T he federal judgment states simply that pe titioner is sentenced to thirty

months ’ imprisonment; it makes no mention of whether petitioner’s federal sentence is conc urrent or consecutive to his already imposed, but not yet discharged, state sentence. A bsent any evidence to the contrary, petitioner’s state and federal sentences are consecutive. See 18 U.S.C. § 3584(a). ¶ 14. Having found that the documents submitted by the State of New York show that petitioner has a remaining sentence to serve in New York, we turn to petitioner’s second argument

— that he cannot be considered a “fugitive from justice” under either Governor’s warrant
because he did not leave the State of New York voluntarily, but instead New York committed him to federal custody after his state conviction for grand larceny so that he could be sentenced in a7

Florida federal district court under federal law for wire fraud. We find this argument as unpersuasive as petitioner’s first

. ¶ 15. We note at t he outset that , though peti tioner falls under 13 V.S.A. § 4943(b)(3)’s
second clause because New York has convicted petitioner of a crime, he also falls under the statute’s first clause. The statute prohibits extradition unless th e demanding state can show: (1) that the person sought “ is lawfully charged

. . . with having com m itted a crime under the laws of that state,” or (2) “that he or she has been convicted of a crime in that state and has escaped from confinement or broken the terms of his or her bail, pro bation or parole.” 13 V.S.A. § 4943(b)(3) (emphasis added). A person, such as petitioner, who is convicted of a crime but has not completed the sentence imposed for commission of that crime, remains “charged” with that
crime. In re Hval , 148 Vt. 544, 546, 537 A.2d 135, 137 (1987) (“ ‘It is uniformly recognized that a crime that has resulted in conviction remains a charge under the constitution so long as the sentence resulting f

rom conviction is unsatisfied.’ ” (quoting Wynsma v. Leach , 536 P.2d 817, 819 (Colo. 1975)). Here, petitioner was sentenced to two

- to

- four years’ imprisonment after conviction for grand larceny in a New York court. The documents attached to New York’s extradition request show that petitioner has not completed this sentence. Thu s, he remains “charged” with the original New York crime as that term is defined in an extradition proceeding. ¶ 16. Neither the Extradition Clause , the federal Extradition Act, nor our statute predicate s a party’s fugitive status on intentional fl ight from the charging jurisdiction . Interpreting the constitutio nal provision, the U.S. Supreme Court has said that “ t he simple inquiry must be whether the person whos e surrender is demanded is in fact a fugitive from justice, not whether he [or she] consciously fled from justice.” Appleyard v. Massachusetts , 203 U.S. 222, 227 (1906).

A person charged by indictment or by affidavit

. . . with the commission within a sta te of a crime covered by its laws, and who, after the date of the commission of such crime, leaves the state,

— no matter for what purpose or with what motive, nor under what belief,

— becomes, from the time of such leaving, and within the8 meaning of the Const itution and the laws of the United States, a fugitive from justice, and if found in another state must be delivered up by the governor of such state to the state whose laws are alleged to have been violated

. . . . Such is the command of the supreme law of the land, which may not be disregarded by any state. Id

. In the Court’s own words, t his definition of “fugitive” applies equally to both the Extradition Clause and the federal Extradition Act’s requirement that the person sought from an asylum state be “a fugitive from justice.” See U.S. Const., art. IV, § 2, cl. 2; 18 U.S.C. § 3182. T he reason for this definition is clear

— the Clause and its implementing Act secure the administration of the criminal laws of the states, “an object of the first concern to the people of the entire country.” Appleyard , 203 U.S. at 227. A narrower definition, predicating fugitive status on intent to leave the charging jurisdiction, if adop ted by fewer than all of the states, would threaten the administration of criminal laws across the nation. ¶ 17. O ther states have followed Appleyard ’s lead to conclude that, on language substantially similar to Vermont’s own statutory language and also derive d from the UCEA , the fugitive status of a person charged with a crime is determined simply by whethe r they are outside the charging jurisdiction. See, e.g., In re Fedder , 299 P.2d 881, 887 ( Cal. Dist. Ct. App. 1956) (“ I t is enough, if after committing a c rime in one jurisdiction, the perpetrator departs and is later found in another.

. . . [E]ven if the prisoner was forcibly removed from the state by federal authorities he is still a fugitive from justice.” ); Clark v. Comm’r of Corr. , 917 A.2d 1, 24 (Conn. 2007) (“[A] person who, like the petitioner, leaves the demanding state involuntarily under government compulsion is a fugitive from justice subject to the mandatory provisions of the act.” ); People ex rel. Shank v. Gerace , 661 N.Y.S.2d 403, 407 (N.Y. App. Div. 1997 ) (“[I]t is immaterial what the [petitioner] believed when he left or whether he had the purpose of avoiding prosecution. ” ); Commonwealth ex rel. Bonomo v. Haas , 236 A.2d 810, 813 (Pa. 1968) (“ [T] he motives or purposes of the party in leaving the state where the crime was committed are entirely i mmaterial

. ” (quotation omitted))

. We agree with these states and follow Appleyard to conclude that, under9

Vermont’s law, fugitive status does not turn on the reason for a party’ s departure from the

co nvicting jurisdiction ; a party’s presence in another state is enough. ¶ 18. Petitioner asks us instead to follow a single case wherein the Maine high court held that fugitive status required deliberate flight. See Lee v. Massie , 447 A.2d 65 (Me. 1982). But when Lee was decided, Maine’s statute included an explicit definition of “fugitive”: “ ‘ A ny person convicted of a crime in the demanding state who is not in that state, unless he is lawfully absent pursuant to the terms of hi s bail or other release .’ ” Id

. at 67 (quoting 15 M.R.S.A. § 201(4)(B) (1980) (alteration omitted) (emphasis added) ). The Lee petitioner was convicted of crimes in both Maine and Colorado, sentenced in Maine , and then subsequently sentenced in Colorado. The Colorado sentence was imposed consecutive to the Maine sentence and the petitioner was returned, after sentencing in Colorado, to Maine’s custody. Id . at 66. Because the petitioner was transferred out of Colorado pursuant to the terms of his sentence, the court concluded that he could not be considered a fugitive under Maine’s express definition of that term. The Maine court did note that other jurisdictions h ad held that a petitioner in the position of the Lee petitioner was a fugitive, but that “[e]ach of the cases arriving at [that] conclusion

. . . is premised on a statutory configuration more closely aligned than is Maine’s to the Uniform Criminal Extradit ion Act which provides no discrete, free

- standing definition of a fugitive from justice.” Id . at 67. ¶ 19. As noted above, Vermont adopted the UCEA in 1933 and th e Act lacks the explicit definition of fugitive employed by the Lee court. See 1933, No. 36 (Adj . Sess.) ( codified as amended at 13 V.S.A. §§ 4941

- 4969 ) ; 13 V.S.A. § 4943 (b)(3)

. And “[w]hen the policies among states are identical, we must be careful that the act of crossing a state boundary does not create different rights, undermining the expressed policies of all the states.” In re Hval , 148 Vt. at 549, 537 A.2d at 139. Because Vermont’s Legislature adopted the UCEA in order to implement the Extradition Clause , we follow those other states that have also adopted the UCEA and the broad10

definition of “fugitive” adopted by the U.S. Supreme Court. See Lovejoy , 148 Vt. at 243, 5 31 A.2d at 924 ; Appleyard , 203 U.S. at 227. ¶ 20. F ederal law governs extradition proceedings ; this point bears emphasizing in this

case . Innes v. Tobin , 240 U.S. 127, 131 (“[I]t was intended by the provision of the Constitution to fully embrace or rather to confer authority upon Congress to deal with [extradition] ” and the Extradition Act of 1793’s “ provisions were intended to be dominant, and, so far as they operated, controlling and exclusive of state power.”). Under In re Hval , petitioner is “charged” with
commission of a crime in New York. 148 Vt. at 546, 537 A.2d at 137

. And under U.S. Supreme Court precedent, petitioner is a “fugitive from justice.” Appleyard , 203 U.S. at 227

. Regardless of the reason for his departure from the State of New York, it is undisputed that he is not currently in that jurisdiction. Where we are governed by federal authority, and that authority is as clear as it is here, we will not gainsay fed eral law. Affirmed. Mandate to issue forthwith

.

FOR THE COURT:

Associate Justice