No. 89-210
I N THE SUPREME COURT O THE STATE O MONTANA
F F
STATE O MONTANA,
F
1 s1
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P l a i n t i f f and Respondent,
DONALD DALE K I N G E R Y , c
.-A
Defendant and A p p e l l a n t . . ,
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The Honorable Douglas H a r k i n , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Donald K i n g e r y , p r o s e t M i s s o u l a , Montana
F o r Respondent:
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dorothy McCarter, A s s t . A t t y . G e n e r a l , Helena
R o b e r t Deschamps, 111, County A t t o r n e y ; B e t t y Wing,
Deputy, M i s s o u l a , Montana
S u b m i t t e d on B r i e f s : Aug. 1 0 , 1989
Decided: September 1 4 , 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the District Court of the Fourth
Judicial District, Missoula County, State of Montana. The
District Court revoked defendant's prior suspended sentence
and sentenced defendant to ten years in the Montana State
Prison at Deer Lodge. Defendant appeals and alleges that he
was deprived of his constitutional right to due process. We
affirm.
The issues in this case are:
1. Did the State violate defendant's constitutional
rights of due process during arraignment and extradition
proceedings?
2. Did the State violate defendant's constitutional
right of due process during probation revocation proceedings?
On October 19, 1987, the defendant, Donald Dale Kingery,
entered into a plea bargain agreement. In return for
pleading guilty to forgery, the defendant received probation
and a ten year suspended sentence subject to certain
conditions. Under the conditions the defendant was to check
in weekly with a probation officer, make restitution and not
be in bars or consume alcohol and not change residence
without first obtaining permission. Judgment on the forgery
charge was entered against the defendant on January 18, 1988.
The State filed a petition to revoke the suspended
sentence on July 12, 1988, citing several violations by the
defendant of the terms and conditions of the judgment. That
same day a bench warrant issued for the arrest of defendant.
The defendant was eventually located and arrested in
Clackamas County, Oregon. On October 17, 1988, Oregon sent
notice to Missoula District Court that the defendant had been
arraigned and refused to waive extradition. The Missoula
County Attorney then applied to the Governor to request the
defendant's extradition from Oregon and the Montana
Governor's office issued the request on October 27, 1988.
The defendant was returned to Montana on November 18,
1988, and had his initial appearance in Missoula County
District Court on November 22, 1988, at which time counsel
was appointed. On December 5, 1988, the defendant denied all
allegations in the petition to revoke and a hearing was set.
Hearing on the petition was held January 23, 1989, and
ultimately the District Court did revoke defendant's
suspended sentence.
Defendant appeals from the judgment revoking the
suspended sentence. Mr. Kingery, although having benefit of
the counsel of a public defender at all prior stages, has now
chosen to proceed pro se.
I.
Did the State violate Kingery's constitutional rights of
due process during arraignment and extradition proceedings?
Defendant asserts that he was deprived of his
constitutional rights of due process as a result of the
State's failure to follow procedural guidelines set forth in
Montana law and the Federal Rules of Criminal Procedure
regarding his arraignment and subsequent extradition.
However, the arraignment and extradition proceedings took
place in Oregon and therefore are susceptible to Oregon law,
not Montana law. The general rule regarding challenge of
extradition proceedings is that:
In interstate extradition
proceedings, the prisoner is held under
the extradition process only until such
time as he reaches the jurisdiction of
the demanding state, and is thenceforth
held under the process issued out of the
courts of that state. Consequently, the
regularity of extradition proceedings may
be attacked only in the asylum state;
after an alleged fugitive has been
delivered into the jurisdiction of the
demanding state, the proceedings may not
be challenged. (Citations omitted. )
State v. Flint (W.Va. 1983), 301 S.E.2d 765, 772, quoting 31
Am.Jur.2d Extradition S 74 (1967).
Under the Uniform Criminal Extradition Act, codified in
Montana at § 46-30-101, MCA, et seq., the remedy for a
fugitive arrested in another state who opposes extradition is
to apply for a writ of habeas corpus in the asylum state.
Section 46-30-217 (2), MCA. Not having opposed the
extradition proceedings in Oregon, defendant may not now
attempt to do so in Montana. See Michigan v. Doran (1978),
439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521, 528.
Additionally, a subsequent conviction is not invalidated by
irregularities or improprieties in the extradition
proceedings. Brown v. Nutsch (8th Cir. 1980), 619 F.2d 758,
762.
We hold that the defendant's challenge to extradition
proceedings is not properly before this Court and in no way
affects the validity of the District Court's order revoking
defendant's probation.
11.
Did the State violate defendant's constitutional rights
of due process during revocation proceedings?
The basis of defendant's argument seems to be (1) that
he did not have sufficient notice of the charges against him
and the purpose of the preliminary hearing, and (2) that
erroneous information was employed by the prosecutor and
probation officer during the revocation hearing. We will
first address defendant's claim he had insufficient notice of
the charges and of the purpose of the preliminary hearing.
This Court previously held that the purpose of the
preliminary hearing on a petition to revoke probation is "to
determine whether there is probable cause to believe that the
accused committed a probation violation." State v. Swan
(1986), 220 Mont. 162, 166, 713 P.2d 1003, 1006.
Additionally, concern for promptness mandates the preliminary
hearing. -Id.
Montana's statutory provision for dealing with probation
violations is found in 88 46-23-1012 and -1013, MCA. Section
46-23-1012(1), MCA, provides:
At any time during probation or
suspension of sentence a court may issue
a warrant for the arrest of the defendant
for violation of any of the conditions of
release or a notice to appear to answer a
charge o violation.
'
T Such notice shall
be personally served upon the defendant.
(Emphasis added. )
Only notice to appear, if the State chooses that route,
requires personal service. The State in this case, however,
chose to issue a warrant for the defendant's arrest rather
than notice to appear. Personal service, therefore, is not
necessary.
Section 46-23-1012 (2), MCA, further requires notice of
probation violations be given when a warrantless arrest of
one who breaks probation is made. This was not a warrantless
arrest. Oregon authorities arrested defendant pursuant to a
bench warrant issued by the State of Montana. Contrary to
defendant's belief, notice of probation violations did not
have to be given defendant at this juncture because this
arrest was pursuant to a warrant.
Section 46-23-1013, MCA , provides post-arrest
procedures. Section 46-23-1013 (1), MCA, requires the
arrested probationer be brought before the court with
jurisdiction over the prisoner "without unnecessary delay for
a hearing on the violation charged." Defendant was arrested
on October 13, 1988 and timely arraigned on or before October
17, 1988 in Oregon where he refused to waive extradition.
Extradition proceedings were begun immediately. Four days
after his arrival in Montana, defendant made his initial
appearance. At this initial appearance, defendant received a
copy of the petition to revoke his suspended sentence which
contained charges of specific probation violations. Any
delay defendant suffered as to notice of the specific
allegations against him and of the purpose for the
preliminary hearing was due to his refusal to waive
extradition.
As noted in State v. Oppelt (1979), 184 Mont. 48, 56,
601 P.2d 394, 399, any determination of unnecessary delay
depends on the facts of the particular case. In Oppelt, as
here, the defendant caused the delay and did not assert his
right to hearing without delay. We hold defendant's claim
that he suffered a delay of notice as to the allegations
against him, thus depriving him of his right to due process,
to be without merit. It should be noted that:
The revocation hearing is not a
criminal trial but a summary hearing to
establish a violation of the conditions
of the prisoner's probation. The
probationer already stands convicted of a
crime no matter what the grounds for the
revocation may be, whether it is the
commission of another crime or
unauthorized travel.
Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185,
1190. This is not to say that petitioner has no rights at a
revocation proceeding, but the hearing is less formal.
In a probation revocation hearing the due process
requirements are: a) written notice of the violations; b)
disclosure of evidence against the probationer; c)
opportunity to be heard in person and to present witnesses
and evidence; d) a neutral tribunal; e) a written statement
by the factfinder as to the evidence relied on and the
reasons for revoking; f) the right to cross-examine witnesses
unless the hearing body finds good cause for disallowing
confrontation; and g) the right to counsel in some
circumstances. State v. Lange (Mont. 1987), 733 P.2d 846,
848, 44 St.Rep. 418, 420, (citing Black v. Romano (1985), 471
U.S. 606, 611-12) and Swan, 220 Mont. at 165, 713 P.2d at
1005-1006.
From the record it is clear that all of these
requirements have been met in the instant case. Defendant's
constitutional rights have been upheld.
Defendant next argues that the State, through its
prosecutor and probation officer, used "erroneous
information" to obtain revocation of his suspended sentence.
Specifically, defendant alleges that 1) the prosecutor
erroneously led the district judge presiding at the January
23, 1989 hearing on a motion to dismiss, to believe defendant
had been arraigned on the bench warrant;" 2) the prosecutor
led the probation officer and the probation officer supplied
false information regarding a report made by a Troy, Montana
police officer, and the State did not subpoena the Troy
police officer or the Libby probation officer whose reports
were referred to in the hearing in revocation of probation,
i.e., the State improperly relied on hearsay to make its
case.
Defendant's argument that the judge was erroneously led
to believe defendant had been arraigned in Oregon does not
stand up to scrutiny. The bench warrant for defendant's
arrest was issued on July 12, 1989. Defendant was arrested
on October 13, 1988 in Oregon. An Oregon court document,
dated October 17, 1988, clearly states that defendant "has
been arraigned on the fugitive complaint" and "has refused to
waive extradition."
Defendant appears to be arguing that he was arraigned on
a fugitive complaint only rather than on a bench warrant and
fugitive complaint, and therefore, procedural due process was
lacking. Whether defendant was arraigned in Oregon on the
fugitive complaint only makes no difference. The fugitive
complaint contains information adequate to apprise the
fugitive of the reasons he is being detained. Additionally,
defendant appeared in Missoula District Court shortly after
he arrived in Montana following his extradition from Oregon.
At this initial appearance, defendant received a copy of the
petition to revoke his suspended sentence which contained
allegations of the specific violations of probation
conditions committed by him. On December 5, 1988, defendant
again appeared in District Court and denied all allegations
in the petition. Finally, a full hearing on the revocation
petition was held in January, 1989 and testimony was
presented. Defendant did not testify or offer evidence to
rebut claims of probation violations alleged in the petition.
Defendant's claims that the State through the testimony
of Probation Officer Michael McCarty submitted erroneous
testimony to the court and relied on reports from individuals
who could easily have been subpoenaed, are also without
merit.
Defendant asserts that Probation Officer McCarty
perjured himself in his Report of Violation submitted to the
District Court in which Mr. McCarty wrote the defendant "was
observed drinking a beer by Bill Denton of the Troy Police
Department." At the revocation hearing Mr. McCarty also
indicated that Officer Denton had observed defendant
consuming alcohol in Troy. Police Officer Denton's
Investigation Crime Report, which was admitted into evidence
at the revocation hearing, actually stated that the defendant
"was found at the bar with a glass of beer in front of him."
Defendant further argues that both Officer Denton and Libby
Probation Officer Edward Duelfer, whose reports chronicling
defendant's probation violations in Lincoln County were
admitted into evidence, could have been subpoenaed and use of
their reports constitutes hearsay.
At a probation revocation hearing the standard required
is "fundamental fairness.'' Meidinger, 168 Mont. at 15, 539
P.2d at 1190. The events of defendant's multiple hearings
indicate he received fundamental fairness. Mr. McCartyls
paraphrasing of the Investigation of Crime Report does not
constitute perjury. Defendant's counsel cross-examined Mr.
McCarty at the hearing and had opportunity to rebut any
testimony presented by Mr. McCarty. Furthermore, drinking
intoxicants was only one of the several violations of
probation conditions for which defendant's probation and
suspended sentence are being revoked. The hearing to revoke
defendant's probation therefore met the fundamental fairness
requirement.
As to the charge that reports from the Troy police
officer and Libby probation officer were improperly admitted
over objection by counsel that testimony as to their content
would constitute hearsay, it must be remembered the
revocation hearing is not a criminal trial. The defendant
has already been convicted of a crime and the hearing is only
to establish violations of the prisoner's probation. - For
Id.
those reasons, less process is due the prisoner, and "that
process must be flexible enough to allow the court to
consider documentary evidence that may not meet usual
evidentiary requirements. " U.S. v. Simrns (9th Cir. 1987) ,
812 F.2d 561, 564. The admission into evidence of the
officers' reports was not error in the probation revocation
hearing. We hold that defendant's constitutional right to
due process was not violated during the proceedings to revoke
probation and suspended sentence.
We affirm.
We concur: -
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