People v. Wendt

309 N.W.2d 230, 107 Mich. App. 269

• Court: Michigan Court of Appeals
• Decided: June 17, 1981
• Docket: Docket No. 51671
• Status: Published

Opinion

Beasley, J.

On March 27, 1980, the Governor of Texas issued a requisition warrant seeking the extradition of Michael Dean Wendt, a/k/a Dennis Scribner, from the State of Michigan. On April 8, 1980, Lt. Governor James H. Brickley, acting Governor, issued a governor’s warrant for the arrest of Michael Dean Wendt, a/k/a Dennis Scribner. Defendant, an inmate of Jackson State Prison, was arraigned on the governor’s warrant on April 22, 1980. The trial court was informed of the receipt of the governor’s warrant and then inquired of the prisoner as to whether he was Michael Dean Wendt to which the prisoner responded that he was. The trial court appointed counsel to represent defendant and set a hearing for May 6, 1980.

At the hearing, defendant’s attorney asked for an adjournment because of an action for mandamus which defendant had filed in the Court of Appeals against Perry Johnson, Director of the Department of Corrections. Defense counsel stated that defendant had filed the mandamus action in propria persona and that he was seeking an order in this Court to compel the Department of Corrections to release him under a Michigan parole plan. The trial court denied the motion for adjournment.

The prosecution called Sandra Phelps, and employee of Jackson Prison, who testified that she had talked to an inmate whom she knew as Dennis Scribner about a detainer from the State of Texas for a person named Michael Wendt. She stated that defendant acknowledged that he was wanted by Texas but that Texas authorities had had an opportunity to assume his custody while he was in Florida but did not do so. Ms. Phelps indicated that she also had talked to the same individual at the prison after the parole board granted him a parole in custody at which time he again stated that he was unwilling to return to Texas. She further testified that she showed defendant the Texas warrant for parole violation and the original offenses and stated that the individual she talked to, defendant, was not surprised about it.

At the conclusion of Ms. Phelp’s testimony, defense counsel moved to dismiss the request for extradition due to insufficient indentification showing that the person in court was the person who was wanted in Texas. The trial court found that the state had failed to show that defendant was the same person sought by Texas authorities. Based on this finding, the trial court entered an order stating that it would not turn over defendant to the State of Texas under the governor’s warrant, the prosecution appeals as of right, raising two issues.

First, the prosecution claims that the trial court had no jurisdiction to rule on the propriety of the governor’s warrant because defendant failed to file a petition for a writ of habeas corpus. We disagree.

Michigan’s Uniform Criminal Extradition Act¹ provides:

"No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.”²

At the time of arraignment in the present case, the trial judge appointed counsel for defendant, was informed that defendant was challenging his extradition, and set a hearing date on the matter. The prosecutor participated in the hearing, producing a witness to show defendant’s identity as the person named in the Texas warrant.

Petitions for habeas corpus are to be liberally construed.³ Moreover, a circuit judge is empowered under GCR 1963, 712.7 to issue a writ of habeas corpus sua sponte. While defendant did not comply with the formal habeas corpus filing procedures outline in GCR 1963, 712, the prosecution had ample notice that defendant was challenging his extradition.⁴ While the usual and normal procedure of attacking an extradition proceeding is by way of habeas corpus, under the circumstances of this case, we decline to find that the circuit court lacked jurisdiction to rule on the propriety of the governor’s warrant.

The prosecution next contends that the governor’s warrant and supporting papers established a prima facie case or defendant’s extradition which was not refuted by defendant. We agree.

The court in an asylum state has a limited scope of review after the governor of the state has granted extradition. In Michigan v Doran,5 the United States Supreme Court stated:

"A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Cf., Bassing v Cady, 208 US 386, 392 [28 S Ct 392; 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 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. These are historic facts readily verifiable.”

Here, the trial judge only considered the question of whether defendant was the person sought to be extradited, finding that the prosecution had failed to show that indentification. But, in this case, defendant had acknowledged, in open court in answer to the assistant prosecutor’s question, that he was Michael Dean Wendt.⁶ Under these circumstances, we hold that the trial court erred in placing the burden of showing identity on the prosecution.

The issuance of a governor’s warrant raises a presumption that the accused named in the warrant is the person sought by the demanding state, and the burden of proof rests upon the prisoner to overcome this presumption by clear and convincing evidence.⁷

Defendant in the present case did not allege or argue that he was not the person sought by the State of Texas. On the contrary, he virtually admitted that he was the person named. At most, he merely argued that the prosecution failed to establish his identity. We hold that, in view of the fact that defendant admitted that he was Michael Dean Wendt, plus the testimony of Ms. Phelps regarding her conversation with defendant, and in view of the fact that the governor’s warrant appeared to be in order, the burden of proof was on the defendant to offer any evidence to refute his identity as the person sought to be extradited. Defendant did not offer any evidence in support of his position, not even a denial. We conclude that, on this record, it was error to refuse to allow defendant to be extradited to Texas.

Defendant also contends that an order discharging a petitioner on a writ of habeas corpus is not reviewable by the people on appeal. This contention is without merit.

The cases relied upon by defendant⁸ are all based on a lack of either statutory or case law allowing the people to appeal an adverse habeas corpus ruling. We hold that the people are empowered to appeal such a ruling under MCL 770.12(1)(c); MSA 28.1109(1)(c).

Reversed and remanded.

1 MCL 780.1 et seq.; MSA 28.1285(1) et seq.

2 MCL 780.9; MSA 28.1285(9).

3 Cross v Dep’t of Corrections, 103 Mich App 409; 303 NW2d 218 (1981).

4 GCR 1963, 712.13.

5 439 US 282, 289; 99 S Ct 530; 58 L Ed 2d 521 (1978).

6 The transcript provides the following:

"Mr. Wood: If it please the Court. Your Honor. In the matter of Michael Dean Wendt a/k/a Dennis Scribner, file number 80-020695-EX. This is a matter of extradition, Your Honor. We have received the Governor’s Warrant from the State of Texas.

"Are you Mr. Michael Dean Wendt?

"A. Yes, I am.”

7 Williams v Wayne County Sheriff, 395 Mich 204, 241-242; 235 NW2d 552 (1975) (opinion of Williams, J.), United States v Flood, 374 F2d 554 (CA 2, 1967).

8 People v Conant, 59 Mich 565; 26 NW 768 (1886), People v Fairman, 59 Mich 568; 26 NW 769 (1886), People v Price, 23 Mich App 663; 179 NW2d 177 (1970).