Gardels v. Brewer

• Decision Date: 13 October 1971
• Docket Number: No. 54765,54765
• Citation: 190 N.W.2d 803
• Parties: Robert William GARDELS, Appellant, v. Lou V. BREWER, Warden, and The State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 803

190 N.W.2d 803

Robert William GARDELS, Appellant, v. Lou V. BREWER, Warden, and The State of Iowa, Appellees.

No. 54765.

Supreme Court of Iowa.

Oct. 13, 1971.

Alanson K. Elgar, Mt. Pleasant, for appellant.

Richard C. Turner, Atty. Gen., Richard N. Winders, Asst. Atty. Gen., and Gary L. Wiegel, County Atty., Mt. Pleasant, for appellees.

REES, Justice.

This case involves an action brought by plaintiff under the provisions of chapter 663A, The Code, 1971, the Post Conviction Procedure statute, challenging his incarceration in the Iowa State Penitentiary at Fort Madison. The trial court denied relief. We affirm.

An extensive recital of the facts is deemed necessary in view of the involved and lengthy record before us. On November 14, 1966 petitioner escaped from the Henry County jail where he was being held awaiting preliminary hearing on a charge of aiding and abetting the larceny of a motor vehicle. In effecting escape, petitioner stole a second automobile in Mt. Pleasant, was subsequently arrested and appeared before the court on November 18, 1966, at which date counsel was appointed for him. The record indicates appointed counsel and petitioner had had opportunities to discuss the matter in detail, and when he appeared before the court, petitioner indicated his desire to enter a plea, and was advised by the court that he was entitled to time before being required to plead, but petitioner indicated he was then ready and prepared to plead, and entered a plea of guilty. Sentencing was set for November 28, 1966 on both the escape from jail charge and the motor vehicle larceny matter, and a pre-sentence investigation was ordered. He again appeared before the court, on November 28, 1966, but due to the fact that the pre-sentence investigation report had not been completed, sentencing was deferred until December 12, 1966, on which date the plaintiff again appeared in court. After an extensive colloquy between court and plaintiff, petitioner was sentenced to a term of not to exceed ten years on the motor vehicle larceny charge and for an indeterminate term of not to exceed one year on the jail escape charge, the sentences to run concurrently.

On March 9, 1969 petitioner was paroled from the institution to employment in Des Moines. The record indicates he violated the terms of his parole in several respects and also reflects the fact he left the state in violation of his parole agreement and went to the State of Montana, where in June he was arrested on a vagrancy charge and sentenced to 30 days in jail. He was then informed that he was wanted in Iowa. The record indicates the judge before whom he appeared was not a judge of a court of record. Counsel was appointed for him at that time, and the judge advised the petitioner he would have to again appear before he would be released to the Iowa authorities. His appointed counsel at that time apparently advised petitioner he could do nothing for him until the extradition papers from the State of Iowa were received in Montana.

The record indicates a contention on the part of the petitioner that he was never again taken before a judge, that he had no further services of an attorney, and that he remained in jail in Missoula, Montana, until sometime in September of 1969, when he was brought back to the penitentiary at Fort Madison. The record further indicates three orders for the revocation of petitioner's parole were issued by the parole board, one being dated June 14, 1969, one July 21, 1969, and the third August 6, 1969. The requisition for the rendition of petitioner from the State of Montana was made by the Governor of Iowa on August 12, 1969, and appears from the record to be in proper order. Attached to the requisition was an appointment of one Pruett as an agent empowered to return petitioner to Iowa. Also attached to the requisition were copies of the August 6 revocation order, a copy of the original information charging petitioner with escape from jail, and sentence thereon, a copy of the parole agreement signed by the petitioner and a copy of the order of revocation dated June 14, 1969.

The Governor of Montana issued his warrant on August 19, 1969 ordering the arrest of petitioner and further ordering him to be turned over to the officer authorized to return him to Iowa.

Petition for writ of habeas corpus was filed by petitioner on May 12, 1970, and on the following day the Honorable William S. Cahill, a judge of the First Judicial District, denied the petition, reciting in his order of denial that no jurisdictional defect was shown by plaintiff in his petition, and that he had not complied with the filing provisions of chapter 663, The Code, 1966. On May 18 following, petitioner filed a petition for writ of certiorari to review the action of Judge Cahill, which writ was denied by the Chief Justice of the Supreme Court, such denial being without prejudice to any action petitioner might bring under the provisions of chapter 663A, The Code, 1966. The provisions of chapter 663A became effective July 1, 1970 and on July 7, 1970 plaintiff filed his application pursuant to chapter 663A, and on the same date counsel was appointed to represent him in connection therewith. Hearing was subsequently had thereon, evidence taken, and the court entered its order denying the relief sought.

In his petition under the Uniform Post Conviction Procedure Act, chapter 663A, petitioner alleged: (1) he was denied counsel during police interrogation, (2) he was denied counsel during a critical stage of the proceedings, (3) he was denied counsel for complete appellate review, (4) he was returned unlawfully to the State of Iowa because of irregularities in the extradition procedures, and (5) that his parole was revoked unlawfully.

We conclude plaintiff's petition properly comes within the purview of chapter 663A, The Code, 1966, and was so treated by the trial court at the evidentiary hearing to pass upon the issues raised in his petition.

I. As above recited, petitioner was charged with breakng jail in violation of section 745.8, The Code, 1966 and with larceny of a motor vehicle in violation of section 321.82, The Code. On his first appearance before the court on November 18, 1966, in connection with the charges above mentioned, counsel was appointed, and petitioner indicated his desire at that time to enter a plea to the informations. In open court he stated that he had had an opportunity to discuss the matter of his plea with his counsel before that date, was then ready to plead and entered a plea of guilty. The chronology of the case is set out above.

The record is devoid of any indication the petitioner was at any time deprived of his right to counsel. He testified at the evidentiary hearing on the petition for post conviction review that he did not recall making any statement at any time to the police in connection with either charge, so that his claim of denial of right to counsel in that context is not established. We have made an exhaustive search of the lengthy record, and it reveals no stage at which the petitioner was denied counsel, and thus his contention in this regard is without merit.

II. Petitioner further urges he was deprived of his right to counsel for a complete appellate review. The record shows he was informed of his right to appeal and the right to counsel at public expense, and his contention in this regard presents nothing for review.

III. Petitioner next asserts his return to Iowa and subsequent imprisonment is unlawful because of irregularities in the extradition proceedings in the State of Montana.

Petitioner had been paroled in March of 1969, and in June of the same year was arrested in Missoula, Montana, under an assumed name on a vagrancy charge, and it was at that time learned he was wanted in Iowa for the violation of his parole. He was then taken before a judge, in all likelihood a justice of the peace, and sentenced to 30 days in jail on the vagrancy charge. Counsel was appointed for him prior to the imposition of sentence. The record shows plaintiff was returned to Iowa in September, 1969, without having had the further services of an attorney, and that he was not taken before a court of record on the extradition proceedings as is required under the uniform act, section 759.10, The Code, 1966. The State of Montana has adopted the Uniform Criminal Extradition Act. The record indicates the Montana counsel appointed for him informed plaintiff he could do nothing for him until formal extradition papers arrived in Montana, and at the imposition of sentence on the vagrancy charge, the sentencing justice advised petitioner he would again appear before a court before he was returned to Iowa.

It is because of the foregoing claimed irregularities which petitioner contends renders his extradition and subsequent incarceration in the institution in Iowa unlawful.

The matter before us was brought under chapter 663A, The Code, and the spirit of the entire act requires us to examine the substance of the petition for any meritorious claims regardless of form. See State v. Mulqueen (Iowa 1971), 188 N.W.2d 360.

It is well established attacks on the irregularity of extradition proceedings must be made in the asylum state; in this instance, Montana. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511--512, 96 L.Ed. 541; Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 228--229, 30 L.Ed. 421; Walden v. Mosley, 312 F.Supp. 855, 861 (N.D.Miss.1970); People v. Klinger, 319 Ill. 275, 149 N.E. 799, 801; 31 Am.Jur.2d, Extradition, § 74, pp. 980--981.

A person in violation of a parole may be extradited. Wilkins v. Granrud, 178 N.W.2d 644, 647 (N.Dak., 1970); State ex rel. Westlund v. Nehls, 43 Wis.2d 328, 168 N.W.2d 863, 868--869; State ex rel. Stephenson v. Ryan, 235 Minn. 161, 50 N.W.2d 259, 265; Ex parte, Colcord, 49 S.Dak. 416, 207 N.W. 213, 214; 31 Am.Jur.2d, Extradition, § 20, pp. 937--938; 35 C.J.S. Extradition § 10(b)2, pp. 396--397; 78...