Ropp, In re, 87-602

• Decision Date: 22 January 1988
• Docket Number: No. 87-602,87-602
• Citation: 541 A.2d 86,149 Vt. 269
• Parties: , 56 USLW 2523 In re Gerald ROPP.
• Court: Vermont Supreme Court

Page 86

541 A.2d 86

149 Vt. 269, 56 USLW 2523

In re Gerald ROPP.

No. 87-602.

Supreme Court of Vermont.

Jan. 22, 1988.

Steve Dunham, Public Defender, St. Albans, for petitioner-appellant.

Howard E. VanBenthuysen, Franklin County State's Atty., St. Albans, for respondent-appellee.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

DOOLEY, Justice.

Petitioner appeals from denial of a petition for a writ of habeas corpus, following his arrest on a Governor's warrant issued in response to an extradition demand from Wisconsin for alleged criminal nonsupport in that state. We reverse and remand.

The present petition follows denial of an earlier one sought after Mr. Ropp was arrested without a warrant pursuant to 13 V.S.A. § 4954 but before the Governor of Wisconsin had issued a requisition warrant seeking extradition. In re Ropp (Ropp I), 149 Vt. 154, 541 A.2d 84 (1987). In that case petitioner had argued that he had not been in Wisconsin during the period involved. We held, however, that the evidence in the record did not contradict the allegations that he had committed the crime alleged while he was in Wisconsin, as set forth in the affidavits supporting the complaint. Id. at ---, 541 A.2d at 86 (citing Lovejoy v. State, 148 Vt. 239, 244, 531 A.2d 921, 924 (1987)).

Pending our determination in Ropp I, on December 3, 1987, the Wisconsin requisition warrant issued seeking extradition of petitioner as a fugitive from justice, based on the same information underlying the first arrest and stating specifically "that the fugitive was present in Wisconsin when the alleged crime was committed but has since fled Wisconsin and is now in Vermont." The Governor of Vermont issued her rendition warrant on December 16, 1987 stating that petitioner "has fled from justice in that State [Wisconsin] and taken refuge in the State of Vermont." The present petition was filed, and the matter was heard in the Franklin Superior Court on December 23, 1987. The parties are in agreement that during the hearing below petitioner offered to prove that he had not been in Wisconsin during the period in question, and further agree that the court declined to receive the evidence. The trial court denied the petition, and this appeal followed.

Having this time tendered evidence of his whereabouts to the trial court, petitioner contends once again that he was not in the State of Wisconsin during the period which forms the basis for the nonsupport charge and therefore cannot be a fugitive from justice. See Matthews v. People, 136 Colo. 102, 106-07, 314 P.2d 906, 908-09 (1957); Ex parte King, 236 S.W.2d 806, 807 (Tex.Crim.App.1951). His offer to supply the evidentiary support missing in Ropp I raises the question of the legal sufficiency of the rendition warrant in the present appeal.

Extradition sought as a matter of right by a demanding state is based on Article IV, § 2, cl. 2 of the United States Constitution, which requires that the accused shall have fled from justice in the demanding state. See Roberts v. Reilly, 116 U.S. 80, 97, 6 S.Ct. 291, 300, 29 L.Ed. 544 (1885). Thus, the presence of the accused in the demanding state is a constitutional prerequisite. See Hyatt v. Corkran, 188 U.S. 691, 709-11, 23 S.Ct. 456, 458-59, 47 L.Ed. 657 (1903). It is not satisfied where, as in the present case, the crime is committed in the demanding state as a matter of substantive law, but where the accused contends he was not present in the state at the time the alleged offense occurred.

Extradition under the United States Constitution is not the only method of extradition. We pointed out in Ropp I, 149 Vt. at --- n. 3, 541 A.2d at 86 n. 3, that even if petitioner had not been present in Wisconsin when the felony nonsupport occurred, he might still be subject to extradition under 13 V.S.A. § 4946, a provision of the Uniform Criminal Extradition Act not based on the Constitution, which has been adopted in Vermont and Wisconsin, as well as nearly all of the other states. Section 4946 provides for extradition of those charged in another state "with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority makes the demand ... notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom." In such event the Governor of the rendering state--Vermont in this case--may use her discretion to grant the extradition request, but is not required to do so by the Constitution. Matthews, 136 Colo. at 107-08, 314 P.2d at 909.

While Wisconsin might have sought that Vermont extradite petitioner under 13 V.S.A. § 4946, instead of or in addition to § 4943 (Vermont's provision for extradition of a fugitive from justice under the Constitution), it clearly did not do so in this case. Nor was the Vermont Governor's rendition warrant based on her discretionary power under § 4946, but rather on her duty to respond to a demand from a fellow governor to extradite a person accused of committing a crime in that state and then seeking refuge in Vermont.

Petitioner rightly contends that if he was arrested as a fugitive from justice, he had the right to demonstrate that he was in fact not a fugitive from justice because he had not been in Wisconsin at the commencement of the alleged nonsupport. People v. Swisher, 60 Ill.App.3d 452, 453, 17 Ill.Dec. 651, 652, 376 N.E.2d 797, 798 (1978); People ex rel. Hall v. Casscles, 51 A.D.2d 623, 624, 378 N.Y.S.2d 813, 816, appeal dismissed, 38 N.Y.2d 1006, 384 N.Y.S.2d 442, 348 N.E.2d 918 (1976). He further contends, and we agree, that if he had been able to demonstrate his nonfugitive status, the current warrant would be invalid because it states on its face that it was issued as a matter of constitutional obligation in response to the Wisconsin demand. The fact that the Governor might have exercised her discretion in favor of returning petitioner to Wisconsin under § 4946 does not validate the warrant. See Layher v. Van Cleave, 171 Colo. 465, 467-68, 468 P.2d 32, 33-34 (1970). The trial court should have considered petitioner's offer of evidence that he was not a fugitive from justice in a constitutional sense, and its failure to do so is reversible error. See Clark v. Warden, 39 Md.App. 305, 312, 385 A.2d 816, 819 (1978).

The State argues that the trial court's decision can be upheld, despite the above analysis, because a different statutory scheme applies to interstate nonsupport cases. Specifically, the State maintains that "[w]hether Mr. Ropp was in the state of Wisconsin during the time period supporting the charges against him does not matter since, under Title 15[,] Chapter 7, Subchapter 2, the whereabouts of someone wanted for nonsupport is specifically made irrelevant in an extradition from another state." The provision recited by the State is 15 V.S.A. § 391, and it provides:

The governor of this state may:

(1) demand of the governor of another state the surrender of a person found in that state who is charged criminally in this state with failing to provide for the support of any person; or

(2) surrender on demand by the governor of another state a person found in this state who is charged criminally in that state with failing to provide for the support of any person. Provisions for extradition of criminals not inconsistent with this chapter apply to the demand even if the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and has not fled therefrom. The demand, the oath, and any proceedings for extradition pursuant to this section need not state or show that the person whose surrender is demanded has fled from justice or at the time of the commission of the crime was in the demanding state.

The section on which the State relies is a part of the Uniform Reciprocal Enforcement of Support Act (URESA), which is designed to promote civil enforcement of support orders where the spouse under a support mandate is not present in the state where the decree was issued. See Commissioners' Prefatory Note to 1950 Act,...