Find Legal Information

24 July 2000

JUSTICE LYTTON delivered the opinion of the court:

Defendant Robert Meschino and his wife filed separate petitionsfor dissolution of marriage in Illinois and California,respectively. When defendant failed to return his daughter toCalifornia at the end of her summer visitation in Illinois, he wascharged with child abduction in California. He refused to waiveextradition proceedings and sought to be released from custody inIllinois. The trial court granted his request for a writ of habeascorpus, and the state appeals. We reverse and remand for furtherproceedings.

Defendant's wife filed a petition for dissolution of marriagein California in 1995.  In 1996, defendant moved to Illinois, andin 1998, he filed a petition for dissolution of marriage here. Amonth later, his wife obtained an ex parte custody order inCalifornia. Defendant filed a motion to dismiss the Californiacustody order, which the Illinois trial court granted.

In January 1999, defendant was charged in California with childabduction for conduct that allegedly occurred on or about October21, 1998, through on or about January 8, 1999. The felony criminalcomplaint alleged that defendant failed to return his daughter toher mother in California when the child's summer visitation with himin Illinois ended.

Defendant was subsequently taken into custody in Will Countypursuant to a governor's warrant obtained by the State ofCalifornia, and he refused to waive his right to extraditionproceedings. He filed an application for a writ of habeas corpusseeking discharge from the governor's warrant. After a hearing, thetrial court found that the State had failed to present sufficientevidence and released defendant from custody. The State filed amotion to reconsider, which was denied. The State appeals.

The State argues that the governor's warrant and itsattachments satisfy the statutory extradition requirements; thus,the trial court should not have granted the writ of habeas corpus.

Two sections of the Uniform Criminal Extradition Act (Act)apply to this case. Section 3 lists the documents that mustaccompany a demand for any extradition case. 725 ILCS 225/3 (West1998). Section 6 permits the extradition of persons who were notpresent in the demanding state at the time of the criminal act. 725ILCS 225/6 (West 1998).

Section 3 of the Act requires that a demand for extradition be

"accompanied by a copy of an indictment found or byinformation supported by affidavit in the state havingjurisdiction of the crime, or by a copy of an affidavitmade before a magistrate there, together with a copy ofany warrant which was issued thereupon ***." 725 ILCS225/3 (West 1998).

In the instant case, the governor's warrant was accompanied by:(1) an application for requisition by a district attorney inCalifornia and an affidavit; (2) a certified copy of the criminalcomplaint filed against defendant with affidavits attesting to afinding of probable cause; (3) a certified copy of a police reportproviding the facts underlying the finding of probable cause; (4)a certified copy of the arrest warrant in California; (5)declarations of the district attorney in California and anaffidavit; (6) declarations of the investigator from the districtattorney's office and affidavit; and (7) the certified photographand fingerprints of defendant. These documents are sufficient tosatisfy the form requirements of the statute.

Section 6 of the Act states:

"[t]he Governor of this State may also surrender, ondemand of the Executive Authority of any other state, anyperson in this State charged in such other state in themanner provided in Section 3 with committing an act inthis State, or in a third state, intentionally resultingin a crime in the state whose Executive Authority ismaking the demand." (Emphasis added.) 725 ILCS 225/6(West 1998).

Citing section 6, the trial court required evidence from thestate showing that defendant intended his conduct to result in thecommission of a crime in California. Since the state could not doso, the trial court granted the writ of habeas corpus.

"The only purpose of extradition is the return of the fugitiveto the place of the alleged offense; it is not a judicial proceedingto inquire into the merits of the charges. The statute should beaccorded liberal construction to accomplish the return of thefugitive summarily ***." People v. Farner, 39 Ill. 2d 176, 180, 233N.E.2d 360, 362 (1968). This court must only consider whether thedemand was in proper form and whether defendant was substantiallyand in good faith charged with an offense in California. See Peoplev. Sain, 24 Ill. 2d 168, 173, 180 N.E.2d 464, 467 (1962).

In Newman v. Elrod, 72 Ill. App. 3d 616, 622, 391 N.E.2d 37,42 (1979), the court held that the Act is satisfied if the documentssupporting a demand for extradition allege the defendant's intentto commit a crime in the demanding state. Other jurisdictions havereached a similar conclusion. In Conrad v. McClearn, 445 P. 2d 222,224 (Colo. 1968), the court held that trial courts need not considerevidence tending to show the absence of criminal intent because thequestion of intent is a jurisdictional fact that need only appearon the face of the documents supporting extradition. Similarly, thecourt in McCullough v. Darr, 548 P. 2d 1245, 1250 (Kan. 1976), heldthat the allegations of intent contained in the affidavit forrequisition and the amended information were sufficient because thecourt in the extraditing state is not concerned with the defendant'sguilt or innocence. See also Boudreaux v. State of Utah, 989 P. 2d1103, 1109 (Utah App. 1999); People ex rel. Schank v. Gerace, 660N.Y.S.2d 403, 408 (1997); In re Mahler, 426 A. 2d 1021, 1030 (N.J.App. 1981); Hagel v. Hendrix, 302 S.W. 2d 323, 329-30 (Mo. App.1957).

We have found no cases that have interpreted section 6 in anyother way. The intent requirement under section 6 is satisfied ifthe demanding state recites that the defendant's act "intentionallyresult[ed] in a crime in the state *** making the demand."

In the instant case, the governor's warrant states thatdefendant

"on or about October 21, 1998 through January 8, 1999,while outside the State of CALIFORNIA, committed an actor acts intentionally resulting in the crime(s) of ChildAbduction, in Merced County in the State of CALIFORNIA,certified to be a crime under the laws of that State andit having been represented to me that the said subjecthas taken refuge in the State of Illinois."

In addition, the governor's demand attached to the warrantstates:

"that under the laws of [California] ROBERT JOHN MESCHINOstands charged with commission of an act or acts in theState of ILLINOIS intentionally resulting in the crime ofCHILD ABDUCTION in the State of California, and it hasbeen represented and is satisfactorily shown *** that heis now to be found in the State of ILLINOIS."

Furthermore, count 1 of the criminal complaint filed inCalifornia states:

"ON OR ABOUT OCTOBER 21, 1998, THROUGH JANUARY 8, 1999,DEFENDANT(S)

ROBERT JOHN MESCHINO

DID COMMIT A FELONY, NAMELY, A

VIOLATION OF SECTION 278.5 OF THE CALIFORNIA PENAL CODE,CHILD ABDUCTION, IN THAT SAID DEFENDANT(S) DID WILLFULLYAND UNLAWFULLY TAKE, ENTICE AWAY, KEEP, WITHHOLD, ANDCONCEAL A CHILD, TO WIT: DOMINIQUE M.,

OF THE AGE OF 6 YEARS OLD, AND DID MALICIOUSLY DEPRIVE APERSON, TO WIT: TAMMY REEVES, OF A RIGHT TO VISITATION ORCUSTODY."

These allegations of defendant's intent are sufficient tosatisfy the requirements of the Act. The State was not required topresent evidence establishing that defendant's alleged conduct wasdone with criminal intent. See Newman, 72 Ill. App. 3d at 622, 391N.E.2d at 42. The defendant's request for a writ of habeas corpusshould not have been granted.

For the reasons stated, the judgment of the circuit court ofWill County is reversed and remanded for further proceedings.

Reversed and remanded.

HOLDRIDGE and HOMER, JJ., concur.