State ex rel. Reddin v. Meekma

Decision Date10 July 1980
Docket NumberNo. 80-316,80-316
Citation99 Wis.2d 56,298 N.W.2d 192
PartiesSTATE of Wisconsin ex rel. Phillip REDDIN, Petitioner-Appellant, v. Theodore MEEKMA, Dodge County Sheriff, Respondent. *
CourtWisconsin Court of Appeals

Douglas W. Plier, Horicon, submitted brief for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., submitted brief for respondent.

Before GARTZKE, P.J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

This is an appeal from an order denying a petition for a writ of habeas corpus. We affirm.

Appellant was convicted of robbery in Kentucky March 20, 1969, sentenced to imprisonment for eight years and released on parole. His parole supervision was transferred to Wisconsin in July 1972, pursuant to sec. 57.13, Stats., the Uniform Act for Out-of-State Parolee Supervision (occasionally referred to as the "compact").

Appellant was arraigned September 9, 1974 in Wood County Court on a charge of second-degree murder. Bail was set at $25,000 but he was not released from the county jail because a parole agent issued a hold order. September 11, 1974 the parole agent recommended revocation of parole. September 23, 1974 the Kentucky Parole Board issued its warrant and requested that appellant be held in custody for Kentucky pending disposition of the charges in Wisconsin. Appellant pled guilty to manslaughter December 17, 1974. He was sentenced to nine years in the Wisconsin State Prison. January 30, 1975, Kentucky filed a parole revocation warrant against appellant at the prison as a detainer.

Appellant was released from prison on mandatory parole November 27, 1979 and was immediately arrested on a Wisconsin warrant under sec. 976.03(13), Stats., the extradition statute. The basis for the arrest was the outstanding Kentucky warrant. December 26, 1979, the Wisconsin warrant was dismissed by the circuit court because Wisconsin had not processed and presented to the court a governor's warrant within the thirty-day period set by the court November 27, 1979. Secs. 976.03(15) and (17). January 21, 1980 appellant was again arrested under a Wisconsin extradition warrant authorized by the governor of this state and was released on a $1,000 personal recognizance bond.

Appellant subsequently petitioned for a writ of habeas corpus. 1 He introduced no evidence at the hearing on his petition. The circuit court found that the extradition warrant was valid and denied appellant's petition.

We deem the issues to be as follows:

1. Is habeas corpus available to appellant to challenge Kentucky's right to retake him where his parole has been transferred to Wisconsin pursuant to the compact, sec. 57.13, Stats.?

2. May this state determine whether appellant has served his Kentucky sentence in full?

3. Has Kentucky rendered appellant's extradition unconstitutional by denying him due process in placing a parole hold and detainer on appellant prior to his conviction in Wisconsin and then failing to provide a parole revocation hearing in over five years after that hold?

1. Habeas Corpus Available

The state asserts that appellant's petition was properly denied because respondent has an independent right to retake appellant under the compact, without extradition. Reddin served his Kentucky parole in this state pursuant to the compact, sec. 57.13, Stats., subsec. (3) of which provides, in relevant part:

That the duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state; ....

Kentucky, the sending state, may enter Wisconsin, the receiving state, under the compact and retake the parolee without process. State ex rel. Niederer v. Cady, 72 Wis.2d 311, 240 N.W.2d 626 (1976). Section 57.13(3), Stats., abrogates sec. 976.03, Stats., the Uniform Criminal Extradition Act, with respect to compact parolees. The official from the sending state need only establish his authority and the identity of the compact parolee to retake the parolee. 72 Wis.2d at 315, 240 N.W.2d at 629.

Kentucky had the right to retake appellant under the compact but nevertheless chose to extradite him. Kentucky is bound by its choice. If a state chooses to proceed under an extradition statute rather than the compact, it must meet the requirements for extradition. Cf. State ex rel. Forte v. Ferris, 79 Wis.2d 501, 511, 255 N.W.2d 594, 599 (1977) (state must comply with witness extradition statute once it chooses to so proceed).

Section 976.03(10), Stats., provides that a fugitive 2 in custody subject to extradition may apply for a writ of habeas corpus to test the legality of his arrest. Appellant may therefore challenge the legality of his arrest by a petition for habeas corpus, regardless of Kentucky's unexercised right to retake appellant without extradition.

2. Petitioner Is A "Fugitive" Subject To Extradition

Once the governor of the asylum state has granted extradition, the court in a habeas corpus proceeding in the asylum state can only decide: (a) whether the extradition documents on their face are in order; (b) whether the 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 from justice. Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978).

The burden in a habeas corpus proceeding is upon the petitioner to prove by a preponderance of the evidence that his detention is illegal. State ex rel. Alvarez v. Lotter, 91 Wis.2d 329, 334, 283 N.W.2d 408, 410 (Ct.App.1979), citing Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941).

A person who is released on parole prior to the expiration of a sentence in this state is subject to extradition by a demanding state having an unsatisfied sentence against him and is a fugitive from justice. State ex rel. O'Connor v. Williams, 95 Wis.2d 378, 383, 290 N.W.2d 533, 535 (Ct.App.1980).

Appellant asserts that he is not a fugitive. As more than eight years have passed since he was sentenced in Kentucky and as his parole was not revoked within that period, he contends he has fully served that sentence.

The demand for extradition by the Governor of Kentucky made December 12, 1979 asserts that appellant is a fugitive from Kentucky. An affidavit by the chairman of the Kentucky Parole Board attached to the demand states that the period of appellant's parole "has not expired, and that the terms thereof are still in force and effect; (and) that ... (appellant) has violated the terms and conditions of parole ...."

It is apparent that Kentucky takes the position that appellant's eight-year sentence imposed in March 1969 was tolled prior to his release on mandatory parole in November 1979. 3

Appellant contends that a criminal sentence cannot constitutionally be tolled for a parole violation prior to a final determination that parole has been revoked. He relies upon Locklear v. State, 87 Wis.2d 392, 274 N.W.2d 898 (Ct.App.1978). The court in Locklear did not decide the point for which it is cited. The issue in Locklear was whether under sec. 57.072, Stats.1975, the Wisconsin tolling statute, an offender is denied credit for time spent while on probation or parole in the absence of a final determination that he committed an act sufficient to warrant revocation. Locklear reserved the question whether the tolling statute is constitutional if it permits the department to file the violation report after the probationary term has expired and to proceed to revoke. 87 Wis.2d at 406, 274 N.W.2d at 904. State ex rel. Beougher v. Lotter, 91 Wis.2d 321, 283 N.W.2d 588 (Ct.App.1979), subsequently held that if the fact of a parole violation is uncontested, a hearing is not statutorily required on the issue in order to toll the running of the sentence on parole.

Beougher is based in part upon Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), in which the parolee had been sentenced to ten years in 1962, paroled in 1966 and convicted of homicides in 1971. A detainer warrant was issued soon after the 1971 convictions but was not executed. The...

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3 cases
  • State ex rel. Lopez-Quintero v. Dittmann
    • United States
    • Wisconsin Supreme Court
    • May 29, 2019
    ...corpus proceeding is on the petitioner to sustain his allegations by a preponderance of the evidence. State ex rel. Reddin v. Meekma, 99 Wis. 2d 56, 61, 298 N.W.2d 192 (Ct. App. 1980) ; State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 334, 283 N.W.2d 408 (Ct. App. 1979) (citing Walker v. Jo......
  • State v. Phillips
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    ... ... State ex rel. Tilkens v. Bd. of Trustees of Firemen's Pension Fund, 253 Wis. 371, 373, 34 N.W.2d 248, 249 ... ...
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    ...(1982), and G.L. c. 276, § 14, on a claim of probation violation by forging and cashing a stolen check. Cf. State ex rel. Reddin v. Meekma, 99 Wis.2d 56, 60, 298 N.W.2d 192 (1980), aff'd, 102 Wis.2d 358, 306 N.W.2d 664, cert. denied, 454 U.S. 902, 102 S.Ct. 407, 70 L.Ed.2d 220 (1981) ("If a......

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