IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION FOURTEEN
DONNA L. WALKER, )
Plaintiff, )
)
vs. ) Case No. 03C 1422
)
ELIZABETH GILLESPIE )
DIRECTOR OF SH. CO. ADULT DET. DIV. )
Defendant. )
)
MEMORANDUM DECISION AND ORDER
Background of the Case
Donna Walker has been charged in the State of Indiana with one count of identity deception and one count of false informing. On August 8, 2003, the Governor of Kansas issued a warrant of extradition for Ms. Walker. On August 13, 2003 Ms. Walker petitioned for a Writ of Habeas Corpus. This court reviewed the petition and issued the writ and set the matter for a hearing on September 9, 2003. On August 15, 2003, the State of Indiana filed an amended charging information. Subsequently on August 29, 2003, the Governor of Kansas issued a new warrant of extradition which was served on Ms. Walker on September 8, 2003. At the hearing on September 9, 2003, the court granted the attorney general’s request on behalf of the governor to withdraw the warrant of extradition that was issued on August 8, 2003. Such withdrawal of the original warrant of extradition rendered the first Writ of Habeas Corpus moot. On September 18, 2003, Ms. Walker filed a new petition for Writ of Habeas Corpus regarding the Governor’s Warrant issued on August 29, 2003 and served on Ms. Walker on September 8, 2003.
Finding of Fact and Conclusions of Law
Petitioner, Donna Walker, has filed this Petition for Writ of Habeas Corpus pursuant to K.S.A. 22-2710 in order to test the legality of her arrest. K.S.A. 60-1501 et seq. sets out the statutory provisions for a Writ of Habeas Corpus. K.S.A. 60-1503 provides that the petition for a writ shall be presented to a judge in the district court and then examined promptly by the judge to whom it is assigned. K.S.A. 60-1503 further provides:
If it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court, the petition shall be dissolved at the cost of the plaintiff. If the judge finds that the plaintiff may be entitled to relief, the judge shall issue the writ and order the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate.
This court has completed the examination of the petition for Writ of Habeas Corpus and makes the findings as set out below.
Whether the Governor Improperly Found That Petitioner Was a Fugitive from Justice
Petitioner Donna Walker alleges that the Governor of Kansas improperly found that petitioner was a fugitive from justice and thus did not exercise her executive discretion in this matter. Petitioner alleges that the governor failed to exercise her discretion because she allegedly approved the warrant of extradition prior to the certified review by the attorney general of the application for requisition and furthermore petitioner Walker argues that the governor failed to investigate the matter fully.
As cited by Ms. Walker, Kennon v. State, 248 Kan. 515, 809 P.2d 546 (1991) clarified the distinction between K.S.A. 22-2702 and K.S.A. 22-2706. As Ms. Walker stated in her brief,
Extradition of a person who has committed a crime in the demanding state and fled therefrom is mandatory under 22-2702 and the governor in the receiving state must grant the extradition request, assuming all the required formalities of K.S.A. 22-2703 and other portions of the act are met. However, under 22-2706, extradition of a person who has committed an act in the receiving state or a third state intentionally resulting in a crime in the demanding state is discretionary with the governor of the receiving state.
Ms. Walker’s Petition for Writ of Habeas Corpus, p.6.
In Kennon, the Kansas Supreme Court remanded the case to the trial court with directions to grant the writ of habeas corpus. The court found “that the documents seeking Kennon’s extradition uniformly alleged that he committed the crimes in Alabama. . .” Kennon, 248 Kan. at 523. However, Kennon’s participation, if any, in the alleged crime took place in Kansas, not in Alabama. Therefore, the Court found that K.S.A. 22-2706 applied to the facts of the case and the governor had discretion to deny the request for extradition. Id.
Unfortunately, there is nothing in the various extradition papers submitted to the governor and nothing in this record which would indicate that Governor Hayden was ever made aware of the fact that this was an extradition in which he had discretion under K.S.A. 22-2706 and not a mandatory extradition under K.S.A. 22-2702.
Kennon, 248 Kan. at 523.
However, Ms. Walker’s case can be distinguished from the facts of Kennon. The application for Requisition of Criminal Defendant clearly states, “[t]he defendant committed acts in the State of Kansas, intentionally resulting in the crimes in the State of Indiana.” In addition, unlike the original warrant issued August 8, 2003, the new Warrant of Extradition issued on August 29, 2003 does not refer to Ms. Walker as a “fugitive” nor does the governor make a finding that Ms. Walker is a fugitive. While it is possible the governor was not aware at the time of the issuance of the first warrant on August 8, 2003 that she had discretion under K.S.A. 22-2706, the transactions that occurred subsequently, ie. the arguments in the first Writ, the communication between Ms. Walker’s counsel and the governor’s Chief Counsel Matthew All, and ultimately the revised language in the new warrant deleting any references to fugitive, leads this court to the conclusion that the governor has been made aware of the fact that she has discretion to deny the extradition under K.S.A. 22-2706 but has chosen to grant the extradition.
Whether Indiana Failed to Sufficiently Charge a Crime
Ms. Walker also argues that Indiana has failed to sufficiently charge a crime. The Kansas Court of Appeals held in Gladney v. Sheriff of Leavenworth County, that:
Where a governor has granted extradition, a court considering release on habeas corpus can do 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. [Following Michigan v. Doran, 439 U.S.282, 58 L. Ed. 2d 521, 99 S. Ct. 530 (1978).]
Gladney, 3 Kan. App. 2d 568, Syllabus 1, 598 P.2d 559 (1979).
In this case, petitioner has not contested whether or not she is the person named in the request for extradition. Likewise, K.S.A. 22-2706 applies, and there is not an issue regarding whether Ms. Walker is a fugitive since petitioner Walker is not alleged to have been in Indiana at the time of the commission of the crime nor is it alleged that she fled from Indiana. Therefore, the two considerations remaining for the court to consider are (a) whether the extradition documents on their face are in order and (b) whether the petitioner has been charged with a crime in the demanding state.
When an accused challenges extradition in a habeas corpus proceeding, the governor’s warrant issued in the extradition proceedings is presumed valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the prime facie case made by the governor’s warrant. McCullough v. Darr, 219 Kan. 477, Syllabus 3, 548 P.2d 1245 (1976).
In the present case, Ms. Walker alleges that the Amended Charging Information, along with the Transcript of Probable Cause Hearing, fails to provide sufficient probable cause in support. This court has thoroughly reviewed the Amended Charging Information and the Transcript of Probable Cause Hearing along with the other documents submitted and finds that the extradition documents on their face are in order and furthermore that petitioner Walker has been charged with two crimes in Indiana.
This court finds that in the Amended Charging Information, the State of Indiana has sufficiently alleged the elements of the crimes charged under Indiana law. The sufficiency of the charging document in Kansas is measured by whether (1) it contains the elements of the offense intended to be charged, (2) it sufficiently apprises the defendant of what he or she must be prepared to meet, and (3) it is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. K.S.A. 22-3201; State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987); State v. Sims, 254 Kan. 1, 17, 864 P.2d 1208 (1993).
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), the Kansas Supreme Court stated, “[t]he complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. [Citation omitted]” 246 Kan. at 753-54.
The court has compared Indiana Code § 35-43-5-3.5 (Identity Deception) and Indiana Code § 35-44-2-2 (False Informing) with the Amended Charging Information. This court finds that the Amended Charging Information sets out the elements of the crime charged in the language of Indiana’s Code.
Regarding Count 1, petitioner argues that as to Identify Deception, the State of Indiana has failed to allege in the Charging Information and/or the probable cause hearing the identifying information of any individual, confirmation that such an individual exists, and further information that such an alleged existing individual did not provide consent. While these arguments of petitioner may have merit, it is not for this court to decide the guilt or innocence of the accused. McCullough v. Darr, 219 Kan. 477, 483, 548 P.2d 1245 (1976). Nor is it the role of this court in this state to review the probable cause determination made by a judge in the State of Indiana.
Additionally, petitioner argues that the State of Indiana failed to sufficiently allege or show intent to harm or defraud. The Indiana Code does not require intent to harm or defraud another person. Instead, the Code alternatively requires the intent to harm or defraud another person, the intent to assume another person’s identity, or the intent to profess to be another person. (Emphasis added).
As for the false informing count, the issue that petitioner raises is whether or not petitioner Walker knew the report or information to be false when she allegedly gave false information in the investigation of the commission of a crime. This issue is clearly one that is not to be determined in Kansas. As the Supreme Court stated in McCullough, “[b]ecause this court does not determine guilt or innocence of the accused, we are not required under K.S.A. 22-2706 to find the accused intentionally committed the crime.” McCullough, 219 Kan. at 483. The question as to whether the petitioner knew that the information was false is closely related to whether the act was intentionally committed and that determination should be made in Indiana rather than in Kansas.
This court, after carefully reviewing Ms. Walker’s petition for a Writ of Habeas Corpus, finds that on the face of the petition the plaintiff is not entitled to relief in district court. Therefore, the court dissolves the petition at the cost of the plaintiff. The above constitutes the court’s findings of fact and conclusions of law and no further journal entry is required.
IT IS SO ORDERED.
Dated this day of September, 2003.
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen
CERTIFICATE OF MAILING
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 23rd day of September , 2003, to the following:
William K. Rork
1321 SW Topeka Blvd.
Topeka, Kansas 66612
Elizabeth Gillespie
501 SE 8th
Topeka, Kansas 66607
Rich Eckert
County Counselor
Shawnee County Courthouse
Topeka, Kansas 66603
Ralph J. De Zago
120 SW 10th
2nd Floor
Topeka, Kansas 66612
Norma J. Dunnaway
Administrative Assistant