People v. Velarde, 85SA333
| Decision Date | 13 July 1987 |
| Docket Number | No. 85SA333,85SA333 |
| Citation | 739 P.2d 845 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lee VELARDE, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter J. Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Kenneth M. Plotz, Deputy State Public Defender, Denver, for defendant-appellant.
The petitioner, Lee Velarde, appeals an order of the Fremont County District Court quashing a writ of habeas corpus and requiring Velarde's transfer to the custody of Nevada authorities pursuant to provisions of the Uniform Act for Out-of-State Parolee Supervision, §§ 24-60-301 to -309, 10 C.R.S. (1982) (Parolee Supervision Act). We affirm.
In April 1977, Velarde was sentenced in Nevada to a term of imprisonment of fifteen years as the result of a robbery conviction. On July 8, 1980, the Nevada Board of Parole Commissioners placed Velarde on parole. His parole agreement permitted him to reside in Colorado under the supervision of Colorado authorities until January 1989. 1 The agreement also contained a provision by which Velarde expressly waived extradition to Nevada from any state and agreed that he would not contest any efforts to return him to Nevada.
On the basis of arrests and convictions sustained by Velarde in Colorado between 1981 and 1983, Nevada authorities issued a "Warrant for Retaking Paroled Prisoners" on February 18, 1983, authorizing qualified parole officers or peace officers to retake Velarde. On March 21, 1983, Velarde was sentenced in Colorado to a term of imprisonment of five years as the result of a theft conviction.
On July 1, 1985, apparently after his release from the custody of the Colorado Department of Corrections, Velarde appeared before the Fremont County District Court. 2 The trial court at that time advised Velarde of his right to remain silent and his right to contest extradition under the Uniform Criminal Extradition Act, §§ 16-19-101 to -132, 8A C.R.S. (1986) (Extradition Act), appointed counsel to represent him and continued the case to July 9, 1985, for further proceedings. On July 9, Velarde indicated that he would contest any extradition proceedings and the district attorney informed the trial court and Velarde that the People intended to proceed under the Parolee Supervision Act rather than under the Extradition Act. On July 15, the People filed a motion to proceed under the Parolee Supervision Act, contending that Velarde had no right to contest his return to Nevada under the terms of the Parolee Supervision Act and his agreement pursuant thereto.
On August 28, 1985, a different judge conducted a hearing on the People's motion. The defendant argued that the People could not proceed under the Parolee Supervision Act but must pursue the question of his return to Nevada under the provisions of the Extradition Act, as the case was initially postured. The trial court concluded that the People could proceed under either the Parolee Supervision Act or the Extradition Act. The trial court indicated, however, that in proceedings under the Parolee Supervision Act some form of warrant for the parolee's arrest would have to be obtained to permit Colorado authorities to arrest the parolee, and observed that no such warrant appeared to have been issued.
At this point in the hearing the district attorney stated that a warrant for the defendant's arrest had been issued by Nevada authorities, indicated that Colorado had received an authenticated copy of that warrant and other authenticated documents from the State of Nevada establishing the identity of the defendant and the authority of Nevada to retake the defendant pursuant to the Parolee Supervision Act, and argued that "we can arrest him today pursuant to the exemplified record of the State of Nevada, and proceed under [the Parolee Supervision Act] and [i]f this is not the appropriate case, then we can of course dismiss the case and have him arrested on the Nevada warrant...." At the request of the deputy district attorney, the trial court then conducted an evidentiary hearing during which authenticated documents were admitted into evidence establishing the defendant's identity and confirming the fact that on February 18, 1983, Nevada authorities issued a warrant for retaking paroled prisoners authorizing Nevada officials to retake the defendant and return him to Nevada.
At the conclusion of this hearing, the trial court ruled that the People were entitled to proceed under the Parolee Supervision Act, in effect granting the People's motion. The trial court then ordered the defendant to be retained in custody for twenty-four hours, ordered the district attorney to cause a warrant to be issued for the defendant's arrest by August 29, and set the matter for further proceedings under section 24-60-306 on September 11, 1985.
On August 29, 1985, the People filed a complaint for revocation of parole. The complaint stated that it was designed "to give notice pursuant to [section 24-60-308(1)(a), 10 C.R.S. (1982) ] of the nature and content of the allegations that Lee Velarde committed a violation of his parole." On September 4, Velarde filed his petition for issuance of a writ of habeas corpus. 3 The petition alleged that the defendant was being illegally confined without due process of law; that he was arrested on August 29, 1985, and was being held "without any criminal charges being filed against him"; and that because the People failed to comply with the trial court's August 28 order, his "arrest" on August 29 was not valid. On September 5, the court issued a writ of habeas corpus and ordered the respondent, the sheriff of Fremont County, to show cause why Velarde should not be released from custody.
On September 11, a hearing was held on the pending Parolee Supervision Act proceeding and on the defendant's habeas corpus petition. The trial court determined that, pursuant to the Parolee Supervision Act, Velarde was the person wanted in Nevada for parole violations, Velarde was being held legally and the documents supported his return to Nevada in summary fashion. The trial court also quashed Velarde's writ of habeas corpus and ordered his transfer to the custody of Nevada officials if such officials appeared within five days.
Velarde has not appealed the trial court's conclusion that the Parolee Supervision Act governs and that its requirements have been satisfied. 4 Velarde has appealed the trial court's ruling quashing the writ of habeas corpus. The order allowing transfer of Velarde to the custody of Nevada authorities was stayed pending resolution of this appeal.
The People's answer brief, while stating that "Colorado courts have not addressed the issues raised by the defendant or the applicability of the [Parolee Supervision Act]," does not directly address any of the defendant's arguments. Rather, the People argue that the appeal should be dismissed because "the defendant is not entitled to habeas corpus relief at any level in accordance with the [Parolee Supervision Act]." However, the People present no authority for the novel proposition that a person seeking relief from incarceration imposed as the result of allegedly invalid proceedings under the Parolee Supervision Act may not utilize the remedy of habeas corpus to challenge that incarceration. §§ 13-45-101 to -121, 6 C.R.S. (1973 & 1986 Supp.). Other jurisdictions have readily recognized the availability of this remedy, albeit for limited issues, to parolees seeking to challenge the nature and result of proceedings conducted pursuant to the provisions equivalent to those of the Parolee Supervision Act. See, e.g., United States ex rel. Simmons v. Lohman, 228 F.2d 824 (7th Cir.1955); Petition of Mathews, 18 Ohio App.2d 155, 247 N.E.2d 791 (1969); Ex Parte Cantrell, 172 Tex.Crim. 646, 362 S.W.2d 115 (1962); Ogden v. Klundt, 15 Wash.App. 475, 550 P.2d 36 (1976). We conclude that the remedy is available to Velarde.
Velarde contends that he is entitled to release from custody because the requirements of neither the Interstate Agreement on Detainers, §§ 24-60-501 to -507, 10 C.R.S. (1982), nor the Extradition Act were followed by the People. Specifically, he asserts that the district attorney's failure to file a complaint under the Extradition Act required his discharge from custody. Implicit in this argument is the assumption that these statutes apply to Velarde. 5
Velarde was released from prison in Nevada and permitted to live in Colorado according to the terms of the Parolee Supervision Act and the Nevada equivalent. Such statutes facilitate a parolee's rehabilitation and reintegration into society by permitting the parolee to be supervised by authorities in a state where the individual has employment, where family members live or where other stabilizing influences are present. §§ 24-60-302(1), -303(1). By the express terms of its Parolee Supervision Act, Colorado has agreed to waive all state extradition proceeding requirements for parolees being supervised under the act. §§ 24-60-302(3), -303(3). Such waiver has been authorized by Congress and does not violate article IV, section 2, clause 2, of the United States Constitution. 18 U.S.C. § 112 (1982); Ex Parte Tenner, 20 Cal.2d 670, 128 P.2d 338 (1942); see also United States ex rel. Simmons v. Lohman, 228 F.2d 824 (7th Cir.1955). Furthermore, as part of his written agreement with Nevada authorities to serve his parole in Colorado, Velarde agreed to waive his rights to extradition proceedings. It is well-established that this waiver violates no constitutional rights of Velarde and is enforceable by Colorado's courts. See, e.g., State ex rel. Morris v. Tahash, 262 Minn. 562, 115 N.W.2d 676 (1962); State v. Maglio, 189 N.J.Super. 257, 459 A.2d 1209 (1983); Commonwealth v. Kaminsky, 206 Pa.Super. 480, 214 A.2d 251 (...
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Johnson v. State
...have held that such waivers are enforceable. See, e.g., Goode v. Nobles, 271 Ga. 30, 518 S.E.2d 122, 123–24 (1999); People v. Velarde, 739 P.2d 845, 849 (Colo.1987); State v. Maglio, 189 N.J.Super. 257, 459 A.2d 1209, 1212 (1983). It is only where there is evidence that such a waiver was ob......
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Goode v. Nobles, S99A0191.
...to be valid and constitutional until the contrary appears...."). Courts in other states have found such waivers valid. People v. Velarde, 739 P.2d 845, 849 (Colo. 1987) (parole); State v. Maglio, 189 N.J.Super. 257, 459 A.2d 1209 (1983); White v. Hall, 15 Md.App. 446, 291 A.2d 694 (1972); S......
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State v. Arundell
...N.J.Super. at 262, 459 A.2d 1209 (citing Pierson v. Grant, 527 F.2d 161 (8th Cir.1975)). A similar result was reached in People v. Velarde, 739 P.2d 845 (Colo.1987), but in a parole circumstance. These cases are distinguishable from this case, however, because they involve parole and/or pro......
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People v. Gurule, 85CA0762
...process. Such rights, whenever assertable, may be waived. See Geer v. Alaniz, 138 Colo. 177, 331 P.2d 260 (1958); see also People v. Velarde, 739 P.2d 845 (Colo.1987) (parolee may, by prior agreement, waive right to challenge extradition). A defendant's right to challenge the constitutional......