Appeal from the Circuit Court of Will County; the Hon. Herman
S. Haase, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The respondent, Kenneth Koren, an inmate at the Joliet Correctional Center, is the subject of a petition for temporary custody filed by the State of Ohio pursuant to the Interstate Agreement on Detainers. The respondent appeals from the denial of his petition for writ of habeas corpus. We reverse.
On July 22, 1982, the prosecutor of Cuyahoga County, Ohio, served the warden of the Joliet Center with a request for temporary custody of the respondent pursuant to section 3-8-9 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003-8-9), the Illinois codification of the Interstate Agreement on Detainers. The respondent replied with a petition for writ of habeas corpus. The State then filed a petition to transfer temporary custody.
During the hearing on the State's and the respondent's petitions, the State presented the testimony of Kathy Cummings, a clerk-typist at the Joliet Center. Cummings testified that the Joliet Center, after receiving a request for temporary custody of the respondent, notified the Governor's office and the Joliet Center's legal staff of the request. The Governor's office responded with a letter approving the transfer of custody. It was during the cross-examination of Cummings that the question of whether the respondent had been notified of his right to petition the Governor to disapprove the request for temporary custody was raised.
Edward Kovacic, a detective in the Cleveland, Ohio, police department, testified that he investigated a murder and armed robbery which occurred in Cleveland, Ohio, on December 20, 1975. Kovacic interviewed the respondent in connection with his investigation. The respondent was subsequently indicted in connection with the murder and armed robbery. On cross-examination Kovacic acknowledged that he did not advise the defendant of his right to petition the Governor to disapprove the request for temporary custody.
The respondent moved for a finding in his favor at the conclusion of Detective Kovacic's testimony, arguing that his right under the Interstate Agreement on Detainers (hereinafter the Agreement) to petition the Governor had been denied. The court found that there was no affirmative duty imposed on the State by the Agreement to inform the respondent of this right. The court further found that the requirements of the Agreement had been met. The respondent's petition for writ of habeas corpus was therefore denied. The State's petition for transfer of custody was granted, but the order transferring the respondent was stayed pending this appeal.
The issue on appeal is whether the respondent was denied due process of law by not being advised of his right under the Agreement to petition the Governor to disapprove the request for temporary custody. This issue raises questions not previously addressed by the courts of Illinois. The State argues in response that the issue of whether the respondent was informed of his right to petition is not properly raised in a hearing under the Agreement, and, alternatively, that the respondent has no right to be informed of his right to petition the Governor.
• 1 We initially determine whether the respondent properly raised this issue in an extradition-type hearing under the Agreement. A prisoner who has a detainer lodged against him pursuant to article IV of the Agreement retains the rights afforded him under the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1981, ch. 60, pars. 18 through 49), including a pretransfer hearing. (Cuyler v. Adams (1981), 449 U.S. 433, 449-50, 66 L.Ed.2d 641, 654-55, 101 S.Ct. 703, 712.) The scope of a pretransfer extradition hearing, which is heard as a habeas corpus proceeding, is generally limited to resolution of the questions: (1) whether documents are regular in form; (2) whether the prisoner is the person named in the warrant; (3) whether the prisoner is a fugitive; and (4) whether the prisoner has been charged with a crime in the demanding State. (Michigan v. Doran (1978), 439 U.S. 282, 58 L.Ed.2d 521, 99 S.Ct. 530.) However, this court has affirmed the inquiry during an extradition hearing into the question of whether the prisoner's right to a speedy trial was violated. People v. McInery (1980), 91 Ill. App.3d 68, 413 N.E.2d 876.
The State argues that because the issue raised by respondent is beyond the scope of inquiry permitted in an extradition proceeding, it should not be considered here. (As we discussed above, the courts of this State have permitted inquiry during an extradition hearing into at least one issue not among the four issues set forth in Doran.) In support of this argument, the State also cites People ex rel. Levin v. Ogilvie (1967), 36 Ill.2d 566, 224 N.E.2d 247. We find both Doran and Levin to be distinguishable from the instant case. In Doran, the issue raised by the accused in his habeas corpus proceeding was whether probable cause existed in the demanding State to arrest him. The Supreme Court phrased the issue on appeal as one concerning the power of the courts of an asylum State to review the finding of probable cause made by a judicial officer in the demanding State. The Supreme Court held that the courts of an asylum State had no power to review the finding of probable cause, reasoning that to allow review in an asylum State of issues which can be litigated in the demanding State would defeat the purposes of the extradition clause, article IV, section 2, clause 2 of the United States Constitution, which is intended to permit the swift processing of criminal offenders. Michigan v. Doran (1978), 439 U.S. 282, 58 L.Ed.2d 521, 99 S.Ct. 530.
Similarly, in Levin, the issue raised was whether statements made by the demanding State's district attorney in the application for extradition proceedings to the demanding State's Governor were false. The Illinois Supreme Court noted that the purpose of the evidence offered by the accused was "to challenge the good faith of the complainant and the authorities of the demanding State, matters we have consistently held may not be inquired into by the courts of this State in extradition matters." People ex rel. Levin v. Ogilvie (1967), 36 Ill.2d 566, 567, 224 N.E.2d 247, 247.
A finding in the instant case that the question of whether the respondent was notified of his right to petition was properly raised in the pretransfer hearing creates no conflict with the reasoning or holdings of either Doran or Levin. The matters inquired into in order to resolve the respondent's issue all relate to procedures implemented and executed by the asylum State. Evidence was already taken during the habeas corpus proceeding regarding the regularity of the demanding State's papers. Indeed, in the instant case, the same witness, Kathy Cummings, who testified regarding the receipt of the demanding State's papers was also questioned regarding the delivery of Illinois' forms to the respondent. Clearly, the inquiry necessary to determine the respondent's right was directed solely to the actions of officers of the asylum State. The inquiry neither reviewed issues which could be litigated in the demanding State nor challenged the authorities of the demanding State.
Further, the action against the respondent was brought pursuant to the Agreement and not the Extradition Act. While Cuyler v. Adams (1981), 449 U.S. 433, 66 L.Ed.2d 641, 101 S.Ct. 703, established that a person against whom a detainer is lodged must have the protection afforded him by the Extradition Act, we do not believe that the guarantees in Cuyler define the maximum protection which may be afforded a prisoner under the Agreement.
• 2 We find that the pretransfer hearing is the appropriate place for the prisoner to raise any questions regarding compliance by the asylum State with the procedural requirements of the Agreement. The burden on the asylum State of refuting issues raised regarding the compliance of the asylum State's procedures with the requirements set forth in the Agreement would therefore be minimal. Resolution of questions relating to procedural compliance by the asylum State during the habeas corpus hearing would not cause delay in the transfer of custody. Conversely, to deny a prisoner the opportunity to present these issues in the pretransfer hearing would be to deny the prisoner a forum in which he may protect the rights afforded him by these procedures. When balanced against the minimal burden imposed on the State, the need to provide a forum wherein a prisoner may protect his right to proper statutory procedure convinces us that the better rule is to allow the prisoner to raise the issue of whether he must be informed of his right to petition the Governor in his habeas corpus hearing.
Having determined that the question raised by the respondent was properly before the lower court, we now consider the merits of the respondent's claim. This is also a question of first impression in Illinois. After a careful review of the case law from our sister States and the Federal courts, we conclude that the ...