Walsh v. State ex rel. Eyman

• Decision Date: 06 February 1969
• Docket Number: No. 9409,9409
• Citation: 450 P.2d 392,104 Ariz. 202
• Parties: Mike James WALSH and Michael Batchelor, Petitioners, v. STATE of Arizona ex rel. Frank A. EYMAN, Warden, Arizona State Prison, Respondents.
• Court: Arizona Supreme Court

Page 392

450 P.2d 392

104 Ariz. 202

Mike James WALSH and Michael Batchelor, Petitioners, v. STATE of Arizona ex rel. Frank A. EYMAN, Warden, Arizona State Prison, Respondents.

No. 9409.

Supreme Court of Arizona, In Banc.

Feb. 6, 1969.

Shuch & Cheche, Phoenix, for petitioners.

Gary K. Nelson, Atty. Gen., Thomas M. Tuggle, Asst. Atty. Gen., Phoenix, for respondents.

LOCKWOOD, Vice Chief Justice:

Mike James Walsh and Michael Batchelor, hereinafter referred to as petitioners, were arrested in Arizona and charged with robbery. They entered pleas of guilty to the charges and were sentenced by the Superior Court of Arizona to terms of not less than five nor more than ten years at the Arizona State Prison, to date from July 26, 1965.

During August of 1965, a detainer was filed by the State of California with the Arizona State Prison, wherein it was requested that petitioners be held pursuant to a warrant of arrest issued by the State of California on or about the 11th day of May, 1965. The record indicates that in July, 1965, petitioners wrote to the District Attorney in California, requesting a speedy trial of the California charges. Thereafter demand was made by the State of California for the extradition of petitioners, and, pursuant to extradition proceedings, petitioners were delivered on January 31, 1967, to officers of the Hollywood, California Police Department who then delivered petitioners to the Sheriff of Los Angeles County for incarceration in the Los Angeles County Jail.

Petitioners entered pleas of guilty to the California charges and each was sentenced by the Superior Court of California to a term of not less than five years, 'to run concurrently with sentences now serving,' and further ordering petitioners to be returned and

'delivered into custody of the proper authorities at the Arizona State Prison, Florence, Arizona. California State Prison time to commence running on receipt of defendant by Arizona State Prison authorities, § 2900 Penal Code.'

On July 15, 1967, petitioners were returned to the Arizona State Prison, to complete the sentences received under their Arizona convictions. By reason of their absence from the Arizona State Prison from January 31, 1967, to July 15, 1967, the petitioners' release date was recomputed and postponed by the amount of time the petitioners were absent from the Arizona State Prison, and in the custody of California authorities.

The record also indicates that two executive agreements were entered into between the Governor of Arizona and the Governor of California. A pertinent provision of the agreements was

'* * * that in the event said Michael James Walsh shall be acquitted following a trial in courts of the State of California, or the prosecution in the State of California is terminated in any manner other than by the imposition and execution of a judgment and sentence of death, said Michael James Walsh shall be returned to the State of Arizona at the expense of the State of California, and that the Governor, or other acting executive authority of the State of California, shall upon demand of the executive authority of the State of Arizona surrender said Michael James Walsh to the duly authorized agents of the State of Arizona.'

An identical provision was entered into with respect to Michael Batchelor (aka Michael Milton Wynkoop). The agreements were to be considered as accepted by the Governor of Arizona upon the release of petitioners to the California authorities. The acceptance by the Governor of Arizona was also manifested by his Governor's Warrant on Extradition in which he stated that the terms of the Executive Agreement were thereby accepted.

Petitioners have now filed petitions for writs of habeas corpus, alleging that their present imprisonment in the Arizona State Prison is unlawful.

Petitioners contend that they were wrongfully denied a request for counsel at their extradition hearing of January 25, 1967, prior to their extradition to California. They also allege that they were not informed of their right to demand counsel as required by A.R.S. § 13--1310. They strongly urge that the legal effect of their extradition to California, Prior to the completion of their Arizona sentences, operated as a waiver by Arizona of any further jurisdiction over their persons and as a pardon or commutation of the remainder of their Arizona sentences, and therefore their pesent confinement at the Arizona State Prison is clearly illegal. Petitioners object to their redelivery to Arizona without benefit of new extradition proceedings. Their last contention is that respondent, Frank A. Eyman (warden of the Arizona State Prison) wrongfully recomputed and postponed their release date without proper authority.

We will first answer petitioners' allegation that they were not informed of their right to demand counsel and that they were denied the right of counsel in the extradition proceedings prior to their transfer to California. Assuming, without deciding, that the petitioners were not informed of their right to demand counsel and that they were wrongfully denied their right to counsel in the extradition hearing, we hold nevertheless that such action would not affect petitioners' present incarceration.

The above issue was presented to the Illinois Supreme Court in People ex rel. Lehman v. Frye, 35 Ill.2d 343, 220 N.E.2d 235 (1966). Jean Edward Lehman, the petitioner in that case, was being held in the Illinois State Penitentiary pursuant to a conviction and sentence for certain felonies committed in Illinois. Extradition was requested by the State of Iowa for the purpose of trying Lehman for the crime of forgery, and it was granted by the Governor of the State of Illinois. A condition to releasing the fugitive to Iowa was contained in an agreement between the Governors of the two states by which Lehman was to be returned to the Illinois State Penitentiary following the conclusion of the Iowa trial. He was delivered to Iowa authorities and, following his discharge by the Iowa Court, he was returned to the Illinois institution. Lehman sought release by writ of habeas corpus because during his extradition from Illinois to Iowa, the State of Illinois failed to take him before a circuit judge and inform him of his right to demand counsel as required by provision of the Uniform Criminal Extradition Act (similar to A.R.S. § 13--1310). The Illinois Court held that such denial of Lehman's rights did not affect his remaining sentence in the Illinois penitentiary.

'While the prisoner was entitled to be taken before a circuit judge under section 10, the failure to do so does not attain constitutional dimensions in connection with serving the sentence imposed by an Illinois court where the conviction and sentence is not under attack. Section 11 (par. 28) of the act makes it a misdemeanor to wilfully disobey the admonition of section 10 but Does not make the violation a waiver of the right to regain and hold custody of the prisoner until his sentence shall have been completed.' 220 N.E.2d at 237. (Emphasis supplied.)

Petitioners in the case at bar contend that the legal effect of their extradition to California, prior to completion of their Arizona sentences, was a waiver by Arizona of any further jurisdiction over petitioners, and that such extradition effected a commutation or pardon of the remainder of their sentences.

Petitioners cite People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, 147 A.L.R. 935 (1943), as authority for their contention that there was a waiver. That case involved circumstances similar to the present case, except that there was no agreement between the executives of the two states that the prisoner would be returned to the asylum state after trial in the demanding state. The Illinois Supreme Court held that in the absence of a statute governing temporary waiver of jurisdiction, and In the absence of any agreement for the return of the prisoner between the Governors of Illinois and Wisconsin, the action of the Governor of Illinois '* * * operated to waive any further jurisdiction over the person of the prisoner * * *.' 50 N.E.2d at 521. The holding of the Barrett case must necessarily be limited to extraditions of fugitives in the absence of any agreement for their return between the executives of the demanding states and the asylum states.

Barrett does not answer the real question of the authority of a governor to attach conditions for the return of a person being extradited, by way of executive agreement. Barrett cites the case of Ex Parte Guy, 41 Okl.Cr. 1, 269 P. 782 (1928) in which the Oklahoma Court held that it was beyond the power of an executive to condition the extradition of a prisoner on his return for purposes of completing an existing sentence in the asylum state. The court in Barrett expressly stated that

'By citing this case as authority we do not mean to approve all that is said about it being beyond the power of the Governor to attach conditions for return to his requisition warrant, but that question is not before us in this case.' 50 N.E.2d at 521.

The Superior Court of New Jersey, Appellate Division, in Rau v. McCorkle 47 N.J.Super. 36, 135 A.2d 224 (1957) had to determine whether the Governor of New Jersey had authority to enter into an executive agreement with the Governor of New York, whereby defendants serving sentences in New Jersey were extradited to face charges in New York. The executive agreement conditioned the extradition on the return of the prisoners to New Jersey after disposition of the charges in New York. That court concluded that there was no specific provision in the New Jersey statutes authorizing the Governor of New Jersey to enter into such a conditional extradition, but the court held that:

'Principles of comity as between sovereigns amply warranted New Jersey, which had possession of and jurisdiction over plaintiffs in respect of crimes they were convicted of and charged with...