No. 84-545 INTHE SUPREME COURT OF TIE STATE OF MONTANA 1985

INTHE MATTER OF THE PETITION OF DONALD A. BLACKBURN a/k/a DONALD BLACKBURN.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Petitioner: Stephens LawFirm, Billings, Montana

For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana HaroldF. Hanser, CountyAttorney, Billings, Montana Michael G. Alterowitz, CountyAttorney, Red Lodge, Montana

Submitted: January 24, 1985

Decided: April 15, 1985

Filed:-',; I.r ) 2r:

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.Petitioner, Donald A. Blackburn, a/k/a Donald Blackburn, requested an order staying judgment and continuation of bond and applied for a writ of habeas corpus from this Court on December 12, 1984. He alleged that procedural errors had occurred,that the chargeby the State of Colorado was improper and that the documents accompanying the demand for extradition were insufficient. This Court issued an order staying judgment and granting a continuation of bond on December 14, 1984. We now deny petitioner's request to issue a writ of habeas corpus, and dismiss his petition. Petitioner was charged on November 4, 1983,by felony complaint/information, filed in the State of Colorado,with the crimesof theft, a felony (section18-4-401,C.R.S. 1973,

as amended), and issuance of bad check, a misdemeanor,

(section 18-5-512, C.R.S. 1973, as amended). A warrant was issued for his arrest.. About December 15, 1983, the Sheriff's Office in Carbon County,Montana received several documents, including a copy of the arrest warra.nt,from the authoritites inColorado. Petitionerhad advised the sheriff that he would surrender himself and appearwhen the warrant

was received. Petitionerdid so on December 16, 1983. That

same day, he was arrested an6 appeared in justice court in Carbon County to answer the Colorado arrest warrant and was later released on his own recognizance. On April 2, 1984, the Governor of the State of Colorado,requested the Governorof the State ofMontana have the petitioner arrested and returned to Colorado to stand trial. An application for requisition, theinformation/complaint, the arrest warrant and a supporting affidavit on probable cause accompanied the request for extradition. The Governor of the State ofMontana issued an arrest warrant for petitioner in response to this request on April 13, 1984. Petitioner was arrested in Yellowstone County onApril 23, 1984,pursuant to the Governor'swarrant, and again released onhis own recognizance pending his filing of a petition for writ of habeas corpus to resist extradition. The matter was heard in the District Court of the Thirteenth Judicial District of the State ofMontana, in and for the County of Yellowstone on July 30, 1984. That court, on December 3, 1984, dismissed the petition forwrit of habeas corpus and ordered petitioner to surrender himself to Colorado authorities within tendays. On this,his second petition forwrit ofhabeas corpus, filed December 14, 1984, petitioner raises the following contentions: (1) The controversy forming the basis for Colorado's request for extradition is a matter for civil litigation; (2) the charging documents sent by the State of Colorado do not conform to the requirements of section 46-30-211(2), MCA, in that there was no copy of any authenticated information,and that the information, warrant and supporting affidavit accompanying the request for extradition containconclusory allegations; (3)sections 46-30-302,-303 and -304,MCA require that

agovernor's warrantbe issuedwithin certain time limitsand the State of Montana did not adhere to these limits; and (4) the petitioner was deprived of an opportunity to have an investigation by the governor's office pursuant to section 46-30-212,MCA.The scope of inquiry by a court in an extradition proceeding is limited to: "(a)whether the extradition documentson their face are in order; 

### "(b) whether the petitioner ha.s been charged with a crime in the demanding state; "(c)whether thepetitioner is theperson named in the request for extradition;and 

### "(d) whether the petitioner is a fugi.tive." Michiganv. Doran (1978),439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521, 527; cited in Crabtree v. State (1980), 186 Mont. 340, 343, 607 P.2d 566,567. In Crabtree, the petitioner ha.dbeen charged with several criminal non-support offenses, was facing extradition, and sought relief by means of habeas corpus. He argued that because the charges were based on failure to comply with a child support order, the matter was civil, not criminal. This Court found no merit in that argument and reversed the lower court's decision to grant release of petitioner. We agreed with the appellant State's argument that section 46-30-225, MCA and the Supreme Court's holding in Duran did notpermit inquiry into theunderlying charges. Petitioner's claim that the transaction at issue in Colorado constitutes a civil matter goes to the underlying charges. We therefore hold that this claim is beyond.the scope of a habeas corpus proceeding in Montana, the asylum state, but note that petitioner may pursue this claim in Colorado, the demanding state. See e.g. Jacobsenv. State (Idaho1978), 577P.2d 24. On the remaining issues, petitioner must support his allegations beyond a reasonable doubt to overturn the Governor's warrant. The Governor's warrant is prima facie evidence of all the information recited in 

### it includingidentity, fugivity, and that the petitioner is properly charged with a crime. In re the Matter of Hart (1978), 178 Mont. 225, 583 P.2d 411. This Court recognized this general rule with respect to whether the accused was a fugitive in State ex rel. Hart v. DistrictCourt (1971), 157 Mont. 287, 293, 485 P.2d 698, 702,stating: "'The issuance of a warrant of rendition by the Governor of the asylum state raises a presumption that the accused is the fugitivewanted. and it is sufficient to justify his arrest, detention and delivery to the demanding state. 

## * * 

## * In order to rebut the presumption the accused must prove beyond a reasonable doubt either that he was not present in the demanding state at the time of the alleged offense or that he was not the person named in the warrant 

# ... 1I1

(Citationsomitted.) Petitioner's second claim concerns the form of the demand made by the State of Colorado. Section 46-30-211(1)

## , PICA sets forth the requirements for thedocumentsat issueas follows: 1 No demand for the extradition of a person charged with crime in another state shallbe recognizedby the governor unless in writing alleging that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state, except in cases arising under 46-30-204, and accompanied by: 

### "(a) a copy of an indictment found or information supportedby affidavit in the state having jurisdiction of the crime; 

### "(b)a copy of an affidavit made before a magistrate there,togetherwith a copy of any warrant which was issued thereon; or 

### "(c)a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statementby the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms ofhisbail,probation,orparole."The Colorado Governor's demand was in writing. It alleged thatpetitioner "isnow to be found" inMontana, that he was present in Colorado at the time of the alleged crimes and that he fled to Montana. The demand was accompanied by the compaint/information, the warrant and an affidavit made before a magistrate. The demand clearly satisfies the requirementsof section 46-30-211(1), MCA. Subsection (2) adds additional requirements. The information or affidavit made before a magistrate must substantially charge a crime under the laws of the demanding state and the information or affidavit must be authenticated by the governor of the demanding state. Petitioner claims that the information and accompanying affidavit contain only conclusory allegationsand thus are insufficient. "'The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however [inartfully] charged with crime in the state fromwhich he has fled.

### ' Piercev. Creecy, 210 U.S. 387, 402, 28 S.Ct. 714, 718, 52 L.Ed. 1113 (1908). See also Hogan v. OINeill, 255 U.S. 52, 55, 41 S.Ct. 222, 65 L.Ed. 497 (1921); Brown

### v. Fitzgerald, 39 F.2d 870, 872 (9th Cir. 1930); United States ex rel. Jackson v. Meyering, 54 F.2d 621, 622 (7th Cir. 1-931), cert. denied, 286 U.S. 542, 52 S.Ct. 498, 76 L.Ed. 1280 (1932); Person v. Morrow, 108 F.2d 838, 840 (10thCir. 1940)." Smith v. State of Idaho (1967)

## , 373 F.2d 149, 158, cert. denied 388U.S. 919, 87 S.Ct. 2139, 18 L.Ed.2d 1364. In Smith, the accused argued that because the demanding papers did not allege the victim died and was a human being they were defective. The court held that the demanding papers need notmeet "common law technicalitiesof pleading" and were sufficient if they charged an offense. The defects alleged in the case at bar are much more general.Nevertheless, the long-standing,universally used rule stated above applies. The demanding papers clearly accuse petitioner of a crime and are sufficient under section 46-30-211(2)

## ,MCA. The other requirementof sub-section (2)

## , that the information or affidavit be authenticated by the governor of the demanding state is satisfied as well. The document signed by the Governor of Colorado states on its face that the complaint/information and affidavit are certified by him as authentic in accordance with Colorado law. We hold that the demand and accompanying documents satisfy all the requirementsof section 46-30-211,MCA. In the third issue, petitioner ergues that Part 3 of Chapter 30,Title 46,MCA imposes time limitson the issuance of the governor's warrant. The plain meaning of these statutes (adopted from the Uniform Criminal ExtraditionAct)

answers this contention. InApplication of Simpson (Kan.App. 1978), 586 P.2d 1389, a complaintwas filed in FinneyCounty, Kansas, alleging that petitioner was a fugitive from justice from Missouri. A fugitive warrantwas issued and petitioner

was admitted tobail. This transpired on September 15, 1977. On October 15, 1977, the governor's warrant had not arrived and a continuance to December 16, 1977 was granted. On December 16, since the governor's warrant stillhad not been received and more than ninety days has elapsed, the proceedings in Finney County were dismissed, and petitioner

was released. Pursuant to the governor's warrant, which arrived onDecember 21, 1977,thepetitionerwas arrested and then petitioned for release. His contention that failure to arrest under the governor's warrant within the ninety day period operated as a bar to further extradition proceedings,was found to be without merit by the Kansas court. The Kansas court stated: "It is obvious that the sections of the Uniform Criminal Extradition Act referred to are to prevent the unreasonably lengthy periods of confinement of fugitives pending consummation of extradition proceedings by the demanding state. They do not restrict the period within which a governor's warrant may be issued or executed to the ninety-day period contained in those statutes."

(Citations omitted.) 586 P.2d at 1390. We hold that the time limits in section 46-30-302 and -304 refer only to the length of detention permitted before an accused person must be released from custody in the asylum state. These sections do not require dismissal of extradition proceedings for any supposed time limits on issuance of the governor'swarrant. We furthernote, for thepurpose of clarity,that these sectionshave 

### - no applicability once a governor's warrant has been issued. Once the Governor of the State of Montana issued his warrant "all questions involving theprior arrest and detention are rendered immaterial." 39 C.J.S. S115, Habeas Corpus,p. 889. Case law also holds that even if the previous detentionwas irregular, which isnot the casehere, then the governor's warrant renders all such claims moot. SeeWilliamsv. Leach (Colo. 1977), 572P.2d 481; In Re Brown (Mass. 1976), 346 N.E.2d 830. McCoy 

### v. Cronin (Colo. 1975), 531 P.2d 379; State ex rel. Holmes v. Spice 

### is. 1975), 229 N.W.2d 97;Applications ofOppenheimer (Ariz. 1964), 389 P.2d 696;Also, in Dilworthv. Leach (Colo. 1973), 515 P.2d 1130, the Colorado Supreme Court agreed with the above cited principle and stated: 

# ".

..Neither reason nor justice requires a change in the wel-1-settled principle that the process involved inthe initial arrest in the asylum state becomes moot upon the issuance of the governor's warrant." 515 P.2d at 1131. Lastly, petitioner contends he was deprived of his opportunity for an investigation by the governor under section 46-30-212, MCA. This statute does not require the accused be given notice of an investigation nor does it require an investigation of the demand for extradition. It simply gives the governor the discretion to check the demanding papers. The legal rule for a century ormore has been that the executive of the asylum statemay act upon the requisition papers in absence of the accused and.without notice to him. See e.g., Munsey v. Clou.gh (1905)

## , 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515; Marbles v. Creecy (1909)~ 215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92 and authorities cited in 31 Am.Jur.2d, Extradition, p. 957 and 35 C.J.S. S15, Extradition, p. 433. This rule stems from the duty of one state to surrender a fugitive from justice on a valid requisition from the governor of another state as fixed by theUnited StatesConstitution. "A person charged in any State with treason, felonyor other crime,who shall flee from justice and be found in another state, shall on demand of the executive authority

,of the state from which he fled, be delivered up, to be removed to the state having jurisdiction. of the crime. I' United States Constitution, Article 

### 4,S2. Section 46-30-201, MCA alsomakes it the duty of the governor to deliver fugitives to the demanding state. His investigative authority and the scope of his discretion is limited to determining that the person demanded is charged with a crime and is a fugitive from justice and the adequacy of thedemand. The accused is entitled to ahearingwith the aid of counsel before a judge of a court of record 

### on theabove issues (section 46-30-217,MCA), but there is 

### - no right of the accused to have an investigation by or a hearing or other appearance before the governor. The petitioner had a hearing in DistrictCourt. His secondhearing is the ca.seat bar. We hold that petitioner was not entitled to either an investigation or notice of an investigation conductedby the governor when a demand for extradition is made by another state.Based on the foregoing: IT IS HEREBY ORDERED: I.. That the petition for writ of habeas corpus is dismissed. 2. That petitioner Donald A. Blackburn, a/k/a Donald Blackburn surrender himself to the authoritiesofYellowstone County,within five (5)days of the date of thisorder,tobe delivered to the duly authorized agent of the State of Colorado within twenty (20) days to stand trial for the charges which form the basis of theseproceedings. /"' /. DATED this day ofApril, 1985. / /

Justices