No. 89-210 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

1 s1 

Plaintiff and Respondent, " 7 

DONALD DALE KINGERY, c .-A 

Defendant and Appellant. . , 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald Kingery, pro set Missoula, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney; Betty Wing, 

Deputy, Missoula, Montana 

Filed: 

Submitted on Briefs: Aug. 10, 1989 

Decided: September 14, 1989 
Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the Fourth 

Judicial District, Missoula County, State of Montana. The 

District Court revoked defendant's prior suspended sentence 

and sentenced defendant to ten years in the Montana State 

Prison at Deer Lodge. Defendant appeals and alleges that he 

was deprived of his constitutional right to due process. We 

affirm. 

The issues in this case are: 

1. Did the State violate defendant's constitutional 

rights of due process during arraignment and extradition 

proceedings? 

2. Did the State violate defendant's constitutional 

right of due process during probation revocation proceedings? 

On October 19, 1987, the defendant, Donald Dale Kingery, 

entered into a plea bargain agreement. In return for 

pleading guilty to forgery, the defendant received probation 

and a ten year suspended sentence subject to certain 

conditions. Under the conditions the defendant was to check 

in weekly with a probation officer, make restitution and not 

be in bars or consume alcohol and not change residence 

without first obtaining permission. Judgment on the forgery 

charge was entered against the defendant on January 18, 1988. 

The State filed a petition to revoke the suspended 

sentence on July 12, 1988, citing several violations by the 

defendant of the terms and conditions of the judgment. That 

same day a bench warrant issued for the arrest of defendant. 

The defendant was eventually located and arrested in 

Clackamas County, Oregon. On October 17, 1988, Oregon sent 

notice to Missoula District Court that the defendant had been 

arraigned and refused to waive extradition. The Missoula 
County Attorney then applied to the Governor to request the 

defendant's extradition from Oregon and the Montana 

Governor's office issued the request on October 27, 1988. 

The defendant was returned to Montana on November 18, 

1988, and had his initial appearance in Missoula County 

District Court on November 22, 1988, at which time counsel 

was appointed. On December 5, 1988, the defendant denied all 

allegations in the petition to revoke and a hearing was set. 

Hearing on the petition was held January 23, 1989, and 

ultimately the District Court did revoke defendant's 

suspended sentence. 

Defendant appeals from the judgment revoking the 

suspended sentence. Mr. Kingery, although having benefit of 

the counsel of a public defender at all prior stages, has now 

chosen to proceed pro se. 

I. 

Did the State violate Kingery's constitutional rights of 

due process during arraignment and extradition proceedings? 

Defendant asserts that he was deprived of his 

constitutional rights of due process as a result of the 

State's failure to follow procedural guidelines set forth in 

Montana law and the Federal Rules of Criminal Procedure 

regarding his arraignment and subsequent extradition. 

However, the arraignment and extradition proceedings took 

place in Oregon and therefore are susceptible to Oregon law, 

not Montana law. The general rule regarding challenge of 

extradition proceedings is that: 

In interstate extradition 

proceedings, the prisoner is held under 

the extradition process only until such 

time as he reaches the jurisdiction of 

the demanding state, and is thenceforth 

held under the process issued out of the 

courts of that state. Consequently, the 

regularity of extradition proceedings may 
be attacked only in the asylum state; 

after an alleged fugitive has been 

delivered into the jurisdiction of the 

demanding state, the proceedings may not 

be challenged. (Citations omitted. ) 

State v. Flint (W.Va. 1983), 301 S.E.2d 765, 772, quoting 31 

Am.Jur.2d Extradition S 74 (1967). 

Under the Uniform Criminal Extradition Act, codified in 

Montana at § 46-30-101, MCA, et seq., the remedy for a 

fugitive arrested in another state who opposes extradition is 

to apply for a writ of habeas corpus in the asylum state. 

Section 46-30-217 (2), MCA. Not having opposed the 

extradition proceedings in Oregon, defendant may not now 

attempt to do so in Montana. See Michigan v. Doran (1978), 

439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521, 528. 

Additionally, a subsequent conviction is not invalidated by 

irregularities or improprieties in the extradition 

proceedings. Brown v. Nutsch (8th Cir. 1980), 619 F.2d 758, 

762. 

We hold that the defendant's challenge to extradition 

proceedings is not properly before this Court and in no way 

affects the validity of the District Court's order revoking 

defendant's probation. 

11. 

Did the State violate defendant's constitutional rights 

of due process during revocation proceedings? 

The basis of defendant's argument seems to be (1) that 

he did not have sufficient notice of the charges against him 

and the purpose of the preliminary hearing, and (2) that 

erroneous information was employed by the prosecutor and 

probation officer during the revocation hearing. We will 

first address defendant's claim he had insufficient notice of 

the charges and of the purpose of the preliminary hearing. 
This Court previously held that the purpose of the 

preliminary hearing on a petition to revoke probation is "to 

determine whether there is probable cause to believe that the 

accused committed a probation violation." State v. Swan 

(1986), 220 Mont. 162, 166, 713 P.2d 1003, 1006. 

Additionally, concern for promptness mandates the preliminary 

hearing. - Id. 

Montana's statutory provision for dealing with probation 

violations is found in 88 46-23-1012 and -1013, MCA. Section 

46-23-1012(1), MCA, provides: 

At any time during probation or 

suspension of sentence a court may issue 

a warrant for the arrest of the defendant 

for violation of any of the conditions of 

release or a notice to appear to answer a 

charge o'T violation. Such notice shall 

be personally served upon the defendant. 

(Emphasis added. ) 

Only notice to appear, if the State chooses that route, 

requires personal service. The State in this case, however, 

chose to issue a warrant for the defendant's arrest rather 

than notice to appear. Personal service, therefore, is not 

necessary. 

Section 46-23-1012 (2) , MCA, further requires notice of 

probation violations be given when a warrantless arrest of 

one who breaks probation is made. This was not a warrantless 

arrest. Oregon authorities arrested defendant pursuant to a 

bench warrant issued by the State of Montana. Contrary to 

defendant's belief, notice of probation violations did not 

have to be given defendant at this juncture because this 

arrest was pursuant to a warrant. 

Section 46-23-1013, MCA , provides post-arrest 

procedures. Section 46-23-1013 (1) , MCA, requires the 

arrested probationer be brought before the court with 

jurisdiction over the prisoner "without unnecessary delay for 
a hearing on the violation charged." Defendant was arrested 

on October 13, 1988 and timely arraigned on or before October 

17, 1988 in Oregon where he refused to waive extradition. 

Extradition proceedings were begun immediately. Four days 

after his arrival in Montana, defendant made his initial 

appearance. At this initial appearance, defendant received a 

copy of the petition to revoke his suspended sentence which 

contained charges of specific probation violations. Any 

delay defendant suffered as to notice of the specific 

allegations against him and of the purpose for the 

preliminary hearing was due to his refusal to waive 

extradition. 

As noted in State v. Oppelt (1979), 184 Mont. 48, 56, 

601 P.2d 394, 399, any determination of unnecessary delay 

depends on the facts of the particular case. In Oppelt, as 

here, the defendant caused the delay and did not assert his 

right to hearing without delay. We hold defendant's claim 

that he suffered a delay of notice as to the allegations 

against him, thus depriving him of his right to due process, 

to be without merit. It should be noted that: 

The revocation hearing is not a 

criminal trial but a summary hearing to 

establish a violation of the conditions 

of the prisoner's probation. The 

probationer already stands convicted of a 

crime no matter what the grounds for the 

revocation may be, whether it is the 

commission of another crime or 

unauthorized travel. 

Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 

1190. This is not to say that petitioner has no rights at a 

revocation proceeding, but the hearing is less formal. 

In a probation revocation hearing the due process 

requirements are: a) written notice of the violations; b) 

disclosure of evidence against the probationer; c) 
opportunity to be heard in person and to present witnesses 

and evidence; d) a neutral tribunal; e) a written statement 

by the factfinder as to the evidence relied on and the 

reasons for revoking; f) the right to cross-examine witnesses 

unless the hearing body finds good cause for disallowing 

confrontation; and g) the right to counsel in some 

circumstances. State v. Lange (Mont. 1987), 733 P.2d 846, 

848, 44 St.Rep. 418, 420, (citing Black v. Romano (1985), 471 

U.S. 606, 611-12) and Swan, 220 Mont. at 165, 713 P.2d at 

1005-1006. 

From the record it is clear that all of these 

requirements have been met in the instant case. Defendant's 

constitutional rights have been upheld. 

Defendant next argues that the State, through its 

prosecutor and probation officer, used "erroneous 

information" to obtain revocation of his suspended sentence. 

Specifically, defendant alleges that 1) the prosecutor 

erroneously led the district judge presiding at the January 

23, 1989 hearing on a motion to dismiss, to believe defendant 

had been arraigned on the bench warrant;" 2) the prosecutor 

led the probation officer and the probation officer supplied 

false information regarding a report made by a Troy, Montana 

police officer, and the State did not subpoena the Troy 

police officer or the Libby probation officer whose reports 

were referred to in the hearing in revocation of probation, 

i.e., the State improperly relied on hearsay to make its 

case. 

Defendant's argument that the judge was erroneously led 

to believe defendant had been arraigned in Oregon does not 

stand up to scrutiny. The bench warrant for defendant's 

arrest was issued on July 12, 1989. Defendant was arrested 

on October 13, 1988 in Oregon. An Oregon court document, 

dated October 17, 1988, clearly states that defendant "has 
been arraigned on the fugitive complaint" and "has refused to 

waive extradition." 

Defendant appears to be arguing that he was arraigned on 

a fugitive complaint only rather than on a bench warrant and 

fugitive complaint, and therefore, procedural due process was 

lacking. Whether defendant was arraigned in Oregon on the 

fugitive complaint only makes no difference. The fugitive 

complaint contains information adequate to apprise the 

fugitive of the reasons he is being detained. Additionally, 

defendant appeared in Missoula District Court shortly after 

he arrived in Montana following his extradition from Oregon. 

At this initial appearance, defendant received a copy of the 

petition to revoke his suspended sentence which contained 

allegations of the specific violations of probation 

conditions committed by him. On December 5, 1988, defendant 

again appeared in District Court and denied all allegations 

in the petition. Finally, a full hearing on the revocation 

petition was held in January, 1989 and testimony was 

presented. Defendant did not testify or offer evidence to 

rebut claims of probation violations alleged in the petition. 

Defendant's claims that the State through the testimony 

of Probation Officer Michael McCarty submitted erroneous 

testimony to the court and relied on reports from individuals 

who could easily have been subpoenaed, are also without 

merit. 

Defendant asserts that Probation Officer McCarty 

perjured himself in his Report of Violation submitted to the 

District Court in which Mr. McCarty wrote the defendant "was 

observed drinking a beer by Bill Denton of the Troy Police 

Department." At the revocation hearing Mr. McCarty also 

indicated that Officer Denton had observed defendant 

consuming alcohol in Troy. Police Officer Denton's 

Investigation Crime Report, which was admitted into evidence 
at the revocation hearing, actually stated that the defendant 

"was found at the bar with a glass of beer in front of him." 

Defendant further argues that both Officer Denton and Libby 

Probation Officer Edward Duelfer, whose reports chronicling 

defendant's probation violations in Lincoln County were 

admitted into evidence, could have been subpoenaed and use of 

their reports constitutes hearsay. 

At a probation revocation hearing the standard required 

is "fundamental fairness.'' Meidinger, 168 Mont. at 15, 539 

P.2d at 1190. The events of defendant's multiple hearings 

indicate he received fundamental fairness. Mr. McCartyls 

paraphrasing of the Investigation of Crime Report does not 

constitute perjury. Defendant's counsel cross-examined Mr. 

McCarty at the hearing and had opportunity to rebut any 

testimony presented by Mr. McCarty. Furthermore, drinking 

intoxicants was only one of the several violations of 

probation conditions for which defendant's probation and 

suspended sentence are being revoked. The hearing to revoke 

defendant's probation therefore met the fundamental fairness 

requirement. 

As to the charge that reports from the Troy police 

officer and Libby probation officer were improperly admitted 

over objection by counsel that testimony as to their content 

would constitute hearsay, it must be remembered the 

revocation hearing is not a criminal trial. The defendant 

has already been convicted of a crime and the hearing is only 

to establish violations of the prisoner's probation. - Id. For 

those reasons, less process is due the prisoner, and "that 

process must be flexible enough to allow the court to 

consider documentary evidence that may not meet usual 

evidentiary requirements. " U.S. v. Simrns (9th Cir. 1987) , 

812 F.2d 561, 564. The admission into evidence of the 

officers' reports was not error in the probation revocation 
hearing. We hold that defendant's constitutional right to 

due process was not violated during the proceedings to revoke 

probation and suspended sentence. 

We affirm. 

We concur: - 

3 Cvef Justice 4. <&+