McQueen v. Wyrick

DONNELLY, Judge. This appeal challenges the constitutionality of portions of the Agreement on Detain-ers (§ 222.160, Laws of Missouri, 1971, p. 278). Appellant is incarcerated in the Missouri State Penitentiary. On October 12,1972, at the request of the State of North Carolina, two detainers were placed against appellant at the Missouri State Penitentiary. On September 8, 1975, the State of North Carolina asked for temporary custody of appellant under the Uniform Agreement on Detainers. On September 11, 1975, appellant filed suit for declared judgment and injunctive relief in the Circuit Court of Cole County, Missouri. On October 15, 1975, that Court issued a temporary restraining order. On November 12, 1975, a hearing was had. At the conclusion of the hearing, the Court dismissed the petition and dissolved the restraining order. An appeal was taken and, on November 18, 1975, a temporary restraining order was issued by this Court. The State of North Carolina seeks temporary custody of appellant under the provisions of Article IV of the Agreement on Detainers (§ 222.160, Laws of Mo.1971). Article IV reads as follows: “1. The appropriate officers of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with paragraph 1 of article V of this agreement upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of the indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. “2. Upon receipt of the officer’s written request as provided in paragraph 1 of this article, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. The authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor. “8. In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. — 781 — “4. Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph 1 of this article, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery. “5. If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph 5 of article V of this agreement, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” There is no express provision in the Agreement on Detainers for judicial review of the proceedings for transfer. The State of North Carolina, had it desired, could have sought custody of appellant under the provisions of the Uniform Criminal Extradition Act (§§ 548.011-548.-300, RSMo 1969). Section 548.051, RSMo 1969, reads as follows: “1. When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings of his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated. .“2. The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in section 548.231 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily. Laws, 1953, p. 425, § 5.” The Uniform Criminal Extradition Act provides for judicial review of the proceedings for transfer. Section 548.101, RSMo 1969, reads as follows: “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. Laws 1953, p. 425, § 10.” The determinative question presented is whether the denial to persons extradited under the Agreement on Detainers, supra, of those procedural rights which are afforded to persons who, at the request of a demanding state, are extradited under the Uniform Criminal Extradition Act, supra, would violate Article I, § 2 of the Constitution of Missouri, which guarantees all persons “equal rights and opportunity under the law * * We must hold that it could. “ * * * The Legislature may pass laws applicable to a particular class of individuals, but such laws must bear equally upon all individuals coming naturally within the class * * Ex parte French, 315 Mo. 75, 83, 285 S.W. 513, 515 (banc 1926). The inequality of rights and opportunity resulting from differing utilizations of § 222.160, supra, and § 548.051, supra, is — 782 — manifest. For example, Prisoner A and Prisoner B are incarcerated in the Missouri State Penitentiary. They are similarly situated. A detainer from North Carolina is lodged against Prisoner A. A detainer from Virginia is lodged against Prisoner B. The State of North Carolina seeks custody of Prisoner A under § 222.160. The State of Virginia seeks custody of Prisoner B under § 548.051. Prisoner B is, by statute, expressly given judicial review of the transfer proceeding in the asylum state. People ex rel. Lehman v. Frye, 35 Ill.2d 343, 220 N.E.2d 235, 237 (1966). Prisoner A is not, by statute, expressly given judicial review of the transfer proceeding in the asylum state. In our opinion, the statutes must not be construed so as to deny to one individual the benefit of certain protective procedures and yet give them to another similarly situated. Accordingly, we must construe § 222.160 so as to make available to persons transferred under its provisions procedures similar to those afforded to persons transferred under § 548.051. In Moen v. Wilson, 536 P.2d 1129, 1133 (Colo.1975), the Supreme Court of Colorado concluded: “Thus, a prisoner does have the right, even when the detainer act is the basis for transfer for the purpose of trial (1) to contest his presence in the receiving state at the time the alleged crime was committed, (2) to question whether he is a fugitive from justice or whether the de-tainer documents are supported by either an indictment or an information supported by an affidavit establishing probable cause, and (3) to determine whether he is substantially charged with a crime under the laws of the receiving state.” We believe this limited right of judicial review, recognized in Moen, supra, should be made available in Missouri to detainees whose transfer is sought under the Agreement on Detainers. We make the following additional observations: First, this limited judicial review should be made in the circuit court of the county in which the detainee is incarcerated. Second, there should be no right of appeal from the determination made by said circuit court. Third, the review procedure should be nonadversary in character and there is no requirement that it include the full panoply of adversary safeguards such as the rights to confrontation, cross-examination, and compulsory process for witnesses. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Fourth, “in considering the sufficiency of the * * * [request documents submitted by the receiving state], it is not for the * * * [sending] state * * * to pass upon the quality, persuasiveness or weight of the evidential matter on the basis of which the * * * [request was made], for it is solely a question of law whether on the face of the papers accompanying the * * * [request] there was sufficient to say * * *” that the Moen questions, supra, may be answered in the affirmative. United States ex rel. Vitiello v. Flood, 374 F.2d 554, 556 (2 Cir. 1967). Fifth, the Moen questions, supra, are the only questions “that may be inquired into by a judicial tribunal.” State ex rel. Gaines v. Westhues, 318 Mo. 928, 933, 2 S.W.2d 612, 615 (banc 1928). Appellant’s assertion that he should not be transferred to North Carolina because he has been denied a speedy trial is an issue properly left to the State of North Carolina. The judgment is reversed and the cause remanded to the Circuit Court of Cole County for a review in accordance with the directions contained in this opinion. MORGAN, HOLMAN, HENLEY and FINCH, JJ., concur. SEILER, C. J., concurs in separate concurring opinion filed. BARDGETT, J., concurs in separate concurring opinion filed.