The extradition has been delayed for a protracted period of time by a writ of habeas corpus improvidently granted by the Court of Common Pleas of Lucas County, Ohio, on October 2, 1979. The decision of the Common Pleas Court was reversed by the Supreme Court of Ohio in a well-reasoned opinion, In re Rowe, 67 Ohio St.2d 115, 423 N.E.2d 167 (1981). The appellants also filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio, Western Division.
The Supreme Court of Ohio has held that when interstate extradition is sought based upon an allegation that an individual committed a felony in the demanding state and has fled to an asylum state, federal law, both constitutional and statutory, is controlling. In re Rowe (1981), 67 Ohio St.2d 115, 117. See, also, Michigan v. Doran (1978), 439 U.S. 282, 288.
Thus, the original dictum in Johnson, supra, appears to have persisted in Terry. The Supreme Court of Ohio has addressed the issue of who is a "fugitive" for purposes of extradition, in In re Rowe (1981), 67 Ohio St.2d 115, 21 O.O.3d 73, 423 N.E.2d 167. As in the Johnson and Terry cases, there does not appear to have been an issue in Rowe as to whether the jurisdiction seeking extradition had had ample time to prosecute the individual before his departure from that jurisdiction.
We disagree. As most recently stated in In re Rowe (1981), 67 Ohio St.2d 115, paragraph two of the syllabus, " * * * a warrant issued by the Governor of Ohio pursuant to R.C. 2963.07, for extradition to the demanding state, * * * is prima facie evidence that constitutional and statutory requirements have been met." This court further stated in paragraph three of the syllabus, " * * * the burden is upon the petitioner to rebut the presumption that petitioner is prima facie in lawful custody by proof beyond a reasonable doubt. * * * " (Emphasis added.)
(Citation omitted.) In re Rowe (1981), 67 Ohio St.2d 115, 117, 21 O.O.3d 73, 74, 423 N.E.2d 167, 169. A fugitive from justice is a person who (1) is suspected of or has been convicted of a crime, (2) is sought by the jurisdiction so that it may subject the person to its criminal justice system, and (3) has left the jurisdiction and is found within the boundaries of another.
Ohio has two additional considerations: (1) "fifth issue" to be considered by the court in the asylum state is whether the extradition is sought to enforce a civil liability; and (2) Ohio requires that the fugitive, if he or she asserts some invalidity of arrest under the governor's warrant, rebut its presumed validity by proof beyond a reasonable doubt. ( Carpenter v. Jamerson, 69 Ohio St.2d 308 [23 O.O.3d 290], and In re Rowe, 67 Ohio St.2d 115 [21 O.O.3d 73], followed.) APPEALS: Court of Appeals for Hamilton County.
Further, where there is contradictory evidence upon the issue of fugitivity and there is substantial and credible evidence supporting a finding of fugitivity, petitioner has not met his burden. In re Rowe (1981), 67 Ohio St.2d 115, 423 N.E.2d 167. Finally, in Carpenter, [ Carpenter v. Jamerson, 69 Ohio St.2d 308, 432 N.E.2d 177 (1982)] the Supreme Court of Ohio held that an individual "charged with a crime" who has not satisfied the judgment against him is a fugitive from justice where he is unable to rebut by proof beyond a reasonable doubt the presumption of fugitivity attached to the governor's warrant. In the habeas proceeding sub judice, the extradition request asserts that the petitioner is "obligated to serve the remainder of his sentence in the State of Arizona."
Because petitioner challenges his alleged status as a fugitive, a court of the asylum state has jurisdiction to consider the issue. See, State v. Smith, 232 Kan. 128, 652 P.2d 703 (1982); In re Rowe, 67 Ohio St.2d 115, 423 N.E.2d 167 (1981). We therefore consider whether identifying petitioner as a fugitive affects his rights.
Although a Haywood County Grand Jury returned true bills of indictment against the defendants charging them with murder in the first degree on 17 September 1978, extradition litigation in Ohio delayed trial until May of 1984. See Pakulski v. Hickey, 731 F.2d 382 (6th Cir. 1984); In re Rowe, 67 Ohio St.2d 115, 423 N.E.2d 167 (1981). In the meantime, a Haywood County Grand Jury had returned additional indictments charging the defendants with robbery with a dangerous weapon, larceny of a motor vehicle, felonious breaking or entering, larceny, and conspiracy to commit murder and conspiracy to break or enter.
On 29 January 1979, a Haywood County grand jury returned true bills of indictment against defendants Mitchell John Pakulski and Elliott Clifford Rowe, charging them with first-degree murder of Willard Setzer. Because of extradition litigation in Ohio and later in the federal court (see Pakulski v. Hickey, 731 F.2d 382 (6th Cir. 1984); In re Rowe, 67 Ohio St.2d 115, 423 N.E.2d 167 (1981)), the defendants were not transported to North Carolina until 9 March 1984. On 5 April 1984, the Haywood County grand jury returned additional indictments charging defendants with robbery of Setzer with a dangerous weapon, larceny of Setzer's automobile, felonious breaking or entering of Dr. Guy Abbate's office, felonious larceny and possession of property belonging to Dr. Abbate, conspiracy to commit murder, and conspiracy to break or enter.