541 P.2d 17 (Alaska 1975), 2252, Smedley v. Holt

• Judge: Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and BURKE, Justices.
• Parties: Benjamin SMEDLEY, Superintendent, Alaska State Jail, Appellant. v. Bertley Allen HOLT, Appellee.
• Docket Number: 2252.
• Date: 06 October 1975
• Citation: 541 P.2d 17
• Court: Alaska Supreme Court

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541 P.2d 17 (Alaska 1975)

Benjamin SMEDLEY, Superintendent, Alaska State Jail, Appellant.

v.

Bertley Allen HOLT, Appellee.

No. 2252.

Supreme Court of Alaska

October 6, 1975

Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for appellant.

Phillip P. Weidner, Asst. Public Defender, Herbert D. Soll, Public Defender, Anchorage, for appellee.

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Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and BURKE, Justices.

OPINION

BOOCHEVER, Justice.

The court is required on this appeal to decide whether the documents submitted by the State of California adequately support that state's request for the extradition of appellee Holt.

In 1958, Holt was charged in California with four counts of second degree burglary stemming from transgressions involving four separate telephone booths. According to the record before us, he has either been awaiting disposition of the charge, on probation, in jail or on parole for all of the intervening 17 years, although there is no indication in the record that he has during that period again transgressed a criminal law protecting either persons or property. ¹ As, in Victor Hugo's immortal Les Miserables, Jean Valjean was relentlessly chased over the years by Javert, so it seems that Holt has been pursued by the law enforcement agencies of California.

Although charged with the burglaries in 1958, Mr. Holt was first brought before the Los Angeles Superior Court on these charges on January 18, 1962, at which time the court, upon his conviction on one of the charges, suspended imposition of sentence and placed Mr. Holt on probation for 5 years. For reasons not indicated by the record, Mr. Holt again appeared before the California court which, on April 9, 1964, entered a judgment revoking Holt's probation. The judgment further states that Mr. Holt was to be punished by imprisonment in the state prison for the term prescribed by law. ²

Mr. Holt apparently was imprisoned in California from April 1964 until October 21, 1965 when he was released on parole. At this point, the record becomes less than clear as to the precise fate which befell Mr. Holt concerning his contacts with the California authorities. The record does show that on February 1, 1972, the Adult Authority refixed Holt's term at 6 1/2 years, and that later that month, Holt was released on parole.

In December 1972, Mr. Holt left his place of residence without the permission of his parole officer, and moved to Alaska where he was arrested in August 1973 on a California warrant charging him with violation of his parole. The Governor of California requested extradition of Mr. Holt, and Governor Egan, the Governor of Alaska at that time, honored the request, issuing a governor's warrant for Holt's arrest. This warrant, however, was quashed by order of the superior court of the State of Alaska on the basis of the failure of the California authorities to furnish a copy of the judgment in compliance with the requirements of AS 12.70.020(b) which provides:

(b) No demand for the extradition of a person convicted of a crime in another state shall be recognized by the governor of this state unless made in writing and containing the following:

(1) a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of bail, probation, or parole;

(2) a copy of the judgment of conviction or of a sentence imposed in execution thereof; the copy must be authenticated

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by the executive authority making the demand.

Undaunted, the California authorities filed a second request for Holt's extradition on January 29, 1974, and a second governor's warrant for Mr. Holt's arrest was issued pursuant thereto. This warrant was also quashed by order of the superior court, once again due to the alleged inadequacy of the supporting papers forwarded by the State of California. Specifically, the superior court held the papers to be deficient in the following respect:

There being no judgment or sentence imposed in execution thereof submitted with the application, there is a failure to meet the requirements of AS 12.70.030(b)(2) and the extradition must fail.

Mr. Smedley, the Superintendent of the Alaska State Jail, appealed, arguing that the papers submitted by California are adequate, and that the lower court erred in its contrary decision. Appellee Holt urges us to uphold the lower court decision and to find the papers insufficient. According to Holt, the papers may be found inadequate for any one of three reasons: (1) the failure of the California sentencing judge to sign the judgment; (2) inconsistencies in the papers concerning the date of the offense; or (3) the failure of the papers to demonstrate California jurisdiction over Holt from 1967 to 1972.

Prior to reaching the merits of this appeal, we must first determine whether the state may appeal from the judgment of the lower court granting Holt's petition for a writ of habeas corpus. AS 12.75.230 provides in pertinent part:

A party to a proceeding by habeas corpus may appeal from the judgment of the court refusing to allow the writ or a final judgment therein in like manner and with like effect as in an action. (emphasis added)

Holt contends that the above statute authorizes an appeal only by an imprisoned petitioner. While the statute does indeed allow an 'appeal from the judgment of the court (denying) the writ', it also contemplates appeal by '(a) party to a proceeding by habeas corpus . . . from . . . a final judgment therein in like manner and with like effect as in an action'. The representative of the state is 'a party', and the judgment granting the writ was a 'final judgment'. We, therefore, are of the opinion that the legislature used the word 'or' in the statute in its truly disjunctive sense and intended by means of this second clause to allow appeals by the state from judgments by the lower court granting the writ. ³ Accordingly, we have jurisdiction to hear this appeal.

Turning to the merits, we find Holt's contention that the requisition papers are inadequate due to the absence of the sentencing judge's signature from the judgment easy to resolve. While Holt does refer to a number of cases from states other than California which require that judgments be signed, ⁴ a California case dealing with this specific issue reaches an opposite conclusion. In In re Steiner, ⁵ the court stated:

And the law pertaining to judgments generally recognizes the propriety of an oral pronouncement which is carried into the court minutes. The judge's signature to a written judgment is not essential. Brown v. Superior Court, 70 Cal.App. 732, 735, 234 P. 409; In re Cook, 77 Cal. 220, 227, 17 P. 923, 19 P. 431, 1 L.R.A. 567; Crim v. Kessing, 89 Cal.

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478, 488, 26 P. 1074. Except where findings are specifically required . . . a judgment is rendered when decision is announced and carried into the minutes.

Since the validity of the judgment herein submitted must be ascertained by California law, we find the unsigned judgment valid.

Holt's second allegation of error may also be readily disposed of. The record reveals that the information and complaint in this case deal with offenses committed in 1958. In the Application for Requisition, where there is to be inserted the date of the commission of the offense, there is instead the date of the issuance of judgment, or April 9, 1964. Holt would have us find this discrepancy fatal. By referring to the record as a whole, however, it is clear that the reason for the variance in dates is a mere clerical error which could neither mislead nor harm Holt. ⁶ As such, we find this inconsistency insufficient to justify a holding that the governor's warrant of arrest was issued without proper cause. ⁷

Of significantly greater merit is Holt's assertion that the papers submitted by the State of California do not demonstrate that state's jurisdiction over him for the years 1967 through 1972 and, therefore, cannot support a demand for his extradition. As noted previously, AS 12.70.020(b)(2) requires in part that a demand for extradition be accompanied by 'a copy of the judgment of conviction or a sentence imposed in execution thereof. . . .' While fully cognizant of the fact that the requirements are stated in the alternative (i. e., the demand must be accompanied either by a copy of the judgment or of the sentence), in the instant case, given the unique nature of California sentencing law, we find that the mere submission of a judgment without complete documentation of sentencing renders inadequate the papers submitted in support of California's demand for the extradition of Mr. Holt.

The purpose of AS 12.70.020(b)(2) is to require that the demanding state assure the asylum state that the person sought is still under sentence by the former state and, therefore, is subject to a demand for extradition by that state. Without such a requirement 'the demanding state could activate this state's extradition procedure by merely saying in the demand that the person claimed in a fugitive'. ⁸ In many cases, the judgment of conviction will specify the duration of the term to be served by the person whose extradition is sought, ⁹ and, therefore, will in itself allow the fugitive state to determine whether the person sought is then under sentence by the demanding state.

Under California's indeterminate sentence law, however, a person convicted of a public offense, punishment for which involves confinement in a state prison, is sentenced by the court, but the court has no discretion to fix the duration of the sentence. ¹⁰ The sentence imposed by the

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court always provides for a term up to the maximum provided for by law. ¹¹ It then becomes the responsibility of the Adult Authority to fix the exact term to be served if it is decided that the term...