Opinion
Docket No. 46031.
Decided January 21, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Lostracco, Prosecuting Attorney, and Louis J. Belzer, Assistant Prosecuting Attorney, for the people. Terrence P. Dignan and Lynn D. Bowne, for defendant on appeal.
An investigation surrounding the disappearance of John H. Patterson around March 2, 1974, led to defendant, who was questioned by the police. On March 11, 1974, defendant was arrested and charged with armed robbery in Ontario, Canada, which fact was made known to the authorities in Shiawassee County on March 13, 1974. On March 14, 1974, the body of John H. Patterson was discovered in Bennington Township, Shiawassee County, under circumstances which indicated that he had been killed by a shotgun blast. On March 19, 1974, defendant was convicted of armed robbery and possession of a weapon in Ontario, and sentenced to seven years in prison. On April 19, 1974, a warrant was issued in Shiawassee County for defendant's arrest on a charge of murder in the first degree arising out of the shooting of John H. Patterson.
On April 22, 1974, the Shiawassee prosecutor went to Windsor, Ontario, Canada, where he spoke with the crown attorney. The Shiawassee prosecutor advises that he was told that the Canadian authorities would not permit extradition of defendant until after he served his Canadian sentence.
Eventually, after serving his sentence, defendant was returned to Michigan and was tried in 1979 for murder. After selection of the jury panel, but prior to swearing in of the jury, defendant pled guilty to murder in the second degree under a plea agreement whereby the murder in the first-degree charge was dismissed. Defendant was sentenced to not less than 30 nor more than 60 years in prison, which sentence was to run consecutively to a not less than 9 nor more than 15 year sentence imposed in Bay County for robbery. Defendant now appeals as of right.
Defendant claims that because he wrote letters to the Shiawassee County authorities and other officials in the United States during the time that he was incarcerated in Canada he has been deprived of a speedy trial. He says that in his correspondence he requested appointment of counsel and that his letters had the effect of being a demand for a speedy trial. Specifically, defendant claims that the failure of the prosecutor to make a formal demand for extradition of defendant constituted denial of defendant's right to a speedy trial. We disagree.
The extradition treaty between the United States and Canada presently in force specifically provides that Canada need not consent to extradition before completion of any sentence that may be validly imposed in Canada. As a matter of fact, the treaty does nothing more than vest discretion in the Canadian authorities with respect to extradition, even after a sentence has been served.
Treaty of Extradition Between the United States of America and Canada, 27 UST 983; TIAS 8237.
This treaty became effective on March 22, 1976, and, by its own terms, is not applicable to crimes committed prior to that date. Prior to the present treaty, extradition between the United States and Canada was governed by the Webster-Ashburton Treaty of 1842 between the United States and Great Britain. While this treaty does not specifically address the issue raised in the present case, the Convention of 1889 between the United States and Great Britain, which supplements the Webster-Ashburton Treaty, provides:
Id., Art 18(2).
8 Stat 572; TS 119.
26 Stat 1508; TS 139.
"The extradition of fugitives under the provisions of this Convention and of the said Tenth Article shall be carried out in the United States and in Her Majesty's dominions, respectively, in conformity with the laws regulating extradition for the time being in force in the surrendering States."
Id., Art VI.
The applicable Canadian statute provides:
"A fugitive who has been accused of an offence within Canadian jurisdiction, not being the offence for which his surrender is asked, or who is undergoing sentence under a conviction in Canada, shall not be surrendered until after he has been discharged, whether by acquittal or by expiration of his sentence or otherwise."
Canadian Extradition Act, Can Rev Stat 1970, Chap E-21, § 24.
Under these circumstances, we are not inclined to hold that the prosecutor was obligated to seek extradition of defendant before expiration of his Canadian sentence. There was no failure to afford a speedy trial in this case, where the prosecutor moved for a trial promptly after the return of defendant to Michigan.
Second, defendant claims that his constitutional right to counsel was violated by failure to appoint a Michigan attorney for him until after his return to the state. Defendant claims that he was entitled to an attorney while he was incarcerated in Canada in order to start an investigation and preserve evidence in his murder case and to insure his right to a speedy trial. We disagree.
In United States v Wade, the United States Supreme Court stated that a criminal defendant has a Sixth Amendment right to counsel at "critical" stages of the proceedings. In Wade, the defendant was held to have a right to counsel at a post-indictment lineup.
388 U.S. 218; 87 S.Ct. 1926; 18 L.Ed.2d 1149 (1967).
A "critical stage" was defined in People v Killebrew as follows:
16 Mich. App. 624, 627; 168 N.W.2d 423 (1969).
"`Critical stage' is understood to mean prosecutorial activity which has some effect on the determination of guilt or innocence which could properly be avoided, or mitigated, by the presence of counsel."
Stages of criminal proceedings which have been found not to be "critical" for purposes of the Sixth Amendment right to counsel include arraignment, the taking and analysis of clothing, the taking of handwriting samples, and the return of a verdict.
People v Killebrew, supra, People v Griffin, 33 Mich. App. 474; 190 N.W.2d 266 (1971).
People v Griffin, supra.
People v Smogoleski, 14 Mich. App. 695; 166 N.W.2d 14 (1968).
People v Williams, 47 Mich. App. 392; 209 N.W.2d 471 (1973).
We hold that a pre-arraignment investigation, absent any confrontation of the accused, is not a critical stage of the criminal proceedings against defendant.
Under the Uniform Criminal Extradition Act, an alleged fugitive in interstate extradition proceedings, if indigent, has a right to appointment of counsel in the asylum state for the limited purpose of challenging, through habeas corpus, the legality of his arrest under a governor's warrant. This act does not extend the right to counsel to either the initial arraignment on a fugitive warrant or the hearing before the governor. The treaties involved in the present case do not make any provision for appointment of counsel.
MCL 780.1 et seq.; MSA 28.1285(1) et seq.
MCL 780.9; MSA 28.1285(9), Rutledge v Ingham County Sheriff, 21 Mich. App. 726; 176 N.W.2d 417 (1970), cert den 401 U.S. 915; 91 S.Ct. 891; 27 L.Ed.2d 814 (1971).
Rutledge v Ingham County Sheriff, supra.
We hold that a defendant charged with a felony is not entitled to appointment of counsel by the Michigan courts in connection with the effort to extradite him from the foreign state. Until the defendant is returned to Michigan for proceedings under the criminal warrant, the Michigan court is not obligated to appoint and furnish counsel for a defendant.
Defendant's final claim is that he was improperly denied credit for the time he was incarcerated in the Canadian prison system. We disagree.
MCL 769.11b; MSA 28.1083(2) provides:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing."
This statute is remedial and is to be liberally construed to achieve its legislative purpose. That purpose is:
People v Face, 88 Mich. App. 435; 276 N.W.2d 916 (1979), People v Groeneveld, 54 Mich. App. 424; 221 N.W.2d 254 (1974).
"* * * to equalize as far as possible the status of the indigent and the less financially well-circumstanced accused with the status of the accused who can afford to furnish bail."
People v Pruitt, 23 Mich. App. 510, 513; 179 N.W.2d 22 (1970).
In order to be entitled to credit, "the time spent in confinement must `bear an intimate and substantial relationship to the crime for which such person is subsequently convicted'".
People v Face, supra, 439, People v Groeneveld, supra, 427-428.
In the present case, no time was served in Canada "because of being denied or unable to furnish bond for the offense of which he is convicted". Neither did the time served "bear an intimate and substantial relationship" to the crime for which defendant was subsequently convicted.
See, also, People v Risher, 78 Mich. App. 431; 260 N.W.2d 121 (1977), People v Finn, 74 Mich. App. 580; 254 N.W.2d 585 (1977).
Under these circumstances, we believe that the clear language of the statute indicates that defendant is not entitled to credit for the time served in Canada for an unrelated charge.
Affirmed.