Rowe, In re

• Decision Date: 08 July 1981
• Docket Number: No. 80-857,80-857
• Citation: 67 Ohio St.2d 115,423 N.E.2d 167
• Parties: , 21 O.O.3d 73 In re Complaint in Habeas Corpus of ROWE et al.
• Court: Ohio Supreme Court

Page 115

67 Ohio St.2d 115

423 N.E.2d 167, 21 O.O.3d 73

In re Complaint in Habeas Corpus of ROWE et al.

No. 80-857.

Supreme Court of Ohio.

July 8, 1981.

Syllabus by the Court

1. When the extradition of an accused from the state of Ohio is sought upon the ground such person has been charged with the commission of a crime in the demanding state and is a fugitive from justice, Clause 2 of Section 2, Article IV of the United States Constitution and implementing federal legislation, as such have been construed by the United States Supreme Court, are, where applicable, controlling and binding upon the courts of the state of Ohio.

2. In a habeas corpus proceeding initiated by the accused pursuant to R.C. 2963.09 to test the validity of his arrest under a warrant issued by the Governor of Ohio, pursuant to R.C. 2963.07, for extradition to the demanding state, the warrant is prima facie evidence that constitutional and statutory requirements have been met.

3. When the invalidity of arrest under the Governor's warrant is asserted by a petitioner in habeas corpus upon the ground that the petitioner was not a fugitive from justice, in that he was not in the demanding state on or about the date of the offense charged, the burden is upon the petitioner to rebut the presumption that petitioner is prima facie in lawful custody by proof beyond a reasonable doubt. If the evidence in the record upon the issue of fugitivity is conflicting and there is present substantial evidence which, if true, tends to prove petitioner was in the demanding state on or about the date of the crime charged, the petitioner has not met the burden placed upon him and is not entitled to be discharged from custody.

On September 17, 1978, the body of Willard Setzer, who had been shot, was discovered in Waynesville, Haywood County, North Carolina. On November 27, 1978, Elliot Rowe III and Mitchell John Pakulski, appellees herein, were charged in the General Court of Justice, Superior Court Division of Haywood County, with the offense of murder in the first degree, committed on or about September 17, 1978, which is a capital offense proscribed by General Statutes Section 14-17 of North Carolina. Arrest warrants were issued by the magistrate of the District Court Division of the court. On December 6, 1978, Donna Rowe, also an appellee herein, was similarly charged and an arrest warrant issued.

Appellees were thereafter arrested in Lucas County, Ohio, upon fugitive warrants issued by the Court of Common Pleas of Lucas County pursuant to 2963.11. On December 6, 1978, James B. Hunt, Jr., Governor of the state of North Carolina, formally requested of James A. Rhodes, Governor of the state of Ohio, the arrest and extradition of Elliot Rowe and Mitchell John Pakulski as fugitives from justice, followed, on December 13, 1978, with a similar request for the extradition of Donna Rowe.

On May 18, 1979, Governor Rhodes granted extradition by the issuance of an arrest warrant for appellees, which warrants were executed by the Sheriff of Lucas County. Thereafter, each appellee filed a complaint for a writ of habeas corpus, pursuant to R.C. 2963.09, to contest the legality of their arrest. The respondent, the Sheriff of Lucas County, filed a "return" to the complaint averring, inter alia, that appellees were being held pursuant to a warrant of arrest issued by the Governor of the state of Ohio.

The complaints were joined for hearing and evidence presented. Essentially, by their complaint averments and evidence appellees asserted they were not fugitives from justice within the meaning of that term as used in the federal Constitution and federal and state extradition statutes, for the reason they were not in the demanding state of North Carolina on or about the date the offense charged was committed. By oral pronouncement on September 7, 1979, followed on October 2, 1979, by judgment entry, the court granted the writ of habeas corpus and discharged appellees from custody. In its judgment entry, the court inter alia, found beyond a reasonable doubt that appellees "were not in the state of North Carolina on the date of the alleged offense."

Upon appeal to the Court of Appeals, the judgment was affirmed. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Anthony G. Pizza, Pros. Atty., Robert J. Gilmer and Joseph P. Thacker, Toledo, for appellant.

Henry B. Herschel, James C. Sass and Christopher C. Loyd, for appellees.

STEPHENSON, Justice.

We need not pause in this appeal for a threshold inquiry as to whether federal or state law is controlling with respect to the matter before us. It is definitively and conclusively settled that when interstate extradition is sought upon the basis that one has committed an offense in the demanding state and fled therefrom to an asylum state, federal law, both constitutional and statutory, insofar as it is applicable, is controlling. South Carolina v. Bailey (1933), 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292; Innes v. Tobin (1916), 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562; Kentucky v. Dennison (1860), 65 U.S. 66, 24 How. 66, 16 L.Ed. 717; Prigg v. Pennsylvania (1842), 41 U.S. 539, 16 Pet. 539, 10 L.Ed. 1060. Further, it is the duty of state courts to administer the federal law as construed by the United States Supreme Court. South Carolina v. Bailey, supra.

The controlling nature of federal law with respect to interstate extradition was recognized by this court in Ex parte Ammons (1878), 34 Ohio St. 518.

The Uniform Criminal Extradition Act (11 Uniform Laws Annot. 51) was adopted by the General Assembly in 1937. 117 Ohio Laws 588. In obvious recognition of the supremacy of federal law, it was provided in R.C. 2963.02 as follows:

"Subject to sections 2963.01 to 2963.27, inclusive, of the Revised Code, the constitution of the United States and all acts of congress enacted in pursuance thereof, the governor shall have arrested and delivered to the executive authority of any other state of the United States, any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state."

Clause 2 of Section 2, Article IV of the United States Constitution reads as follows:

"A person charged in any State with treason, felony, or 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."

Congress implemented such provision in 1793. 1 Stat. 302. In its present form, Section 3182, Title 18, U.S. Code, reads as follows:

"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged."

The purpose of the extradition clause and the limitation upon the judicial authority of courts of the asylum state when relief is sought by habeas corpus after the issuance of governor's warrant is succinctly epitomized in Michigan v. Doran (1978), 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521, wherein the court at pages 287, 288-289, 99 S.Ct. at pages 534, 535-536, stated:

"The Extradition Clause was intended to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed. Biddinger v. Commissioner of Police, 245 U.S. 128, 132-133, 38 S.Ct. 41, 42-43, 62 L.Ed. 193 (1917); Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161 (1906). The purpose of the Clause was to preclude any state from becoming a sanctuary for fugitives from justice of another state and thus 'balkanize' the administration of criminal justice among the several states. * * *

" * * *

"Whatever the scope of discretion vested in the governor of an asylum state, cf. Kentucky v. Dennison, 24 How. 66, 107, 16 L.Ed. 717 (1861), the courts of an asylum state are bound by Art. IV, Sec. 2, cf. Compton v. Alabama, 214 U.S. 1, 8, 29 S.Ct. 605, 607, 53 L.Ed. 885 (1909), by Sec. 3182, and, where adopted, by the Uniform Criminal Extradition Act. A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Cf. Bassing v. Cady, 208 U.S. 386, 392, 28 S.Ct. 392, 393, 52 L.Ed. 540 (1908). Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable."

In light of the appellee's concession, both in the courts below and here, that no claims of invalidity were being asserted upon any defects in the extradition documents or that appellees are not the persons named in the criminal charges pending in North Carolina, the focus is upon whether appellees are fugitives from justice.

For extradition purposes under the federal Constitution, a person charged...