                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Robert Prokop,

Plaintiff Below, Petitioner                                                        FILED

                                                                             February 6, 2015
vs) No. 13-1203 (Mercer County 13-P-CR-311)                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Michael Francis, Administrator, Southern Regional Jail,
Respondent Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Robert Prokop, by counsel Joseph T. Harvey, appeals the order of the Circuit
Court of Mercer County, entered September 25, 2013, that denied his petition for writ of habeas
corpus and ordered that he be extradited to the State of Missouri to face charges of criminal non­
payment of child support. Respondent Michael Francis, the Administrator of the Southern
Regional Jail, by counsel Christopher S. Dodrill, filed a response in support of the circuit court’s
order.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

        On April 22, 2013, petitioner was arraigned in the Magistrate Court of Mercer County,
West Virginia, on two charges: first, for being a fugitive from justice from criminal charges
pending against him in the State of Missouri; second, for being a felon in possession of a firearm
in violation of West Virginia Code § 61-7-7.

        At a May 16, 2013, hearing on those charges, the State told the circuit court that it
intended to ask the magistrate court to dismiss the felon in possession of a firearm charge against
petitioner. Petitioner then informed the circuit court that he would not waive extradition;
petitioner also sought bond. The circuit court denied bond and set a hearing on the extradition
proceeding for June 12, 2013. At that hearing, the circuit court granted the State’s motion for a
sixty-day extension and scheduled the matter for hearing on August 5, 2013.

       On June 6, 2013, an assistant prosecuting attorney for Buchanan County, Missouri, sent
Missouri’s governor an application for requisition which stated, in part: “[T]he accused was not
personally present in [Missouri] at the time of the commission of the crime, and upon
information and belief has taken refuge and is currently present in the State of West Virginia.” In
response, the Governor of Missouri signed a requisition demand and agent authorization on July
8, 2013, which stated:


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       WHEREAS, the Governor of the State of Missouri has by a Requisition
       Demanded of the Governor the body of ROBERT CARL PROKOP, and has
       represented that the accused is charged with a crime in said State, and that the said
       accused has taken refuge within the State of West Virginia; and,

       WHEREAS, it appears from papers accompanying said Requisition, therein
       certified to be duly authenticated according to the laws of said State, the said
       accused stands charged with the crime of Criminal Non-Support, in the County of
       Buchanan, in said State of Missouri.

The application for requisition, the requisition demand, and the agent authorization were
tendered to West Virginia’s Governor along with the following Missouri documents: a duplicate
of a warrant for arrest; a felony complaint; a probable cause statement; an affidavit signed by
petitioner’s ex-wife identifying an attached photograph to be that of “Robert Carl Prokop”;
authenticated judicial records regarding “Robert Prokop’s” child support obligation and
payments thereon; and an affidavit of the exhaustion of civil remedies in Missouri. In this last
document, an assistant prosecuting attorney for Buchanan County, Missouri, certified that

       all civil remedies for enforcing the child support order against the defendant,
       Robert Carl Prokop, have been attempted and exhausted. That attempting civil
       remedies for enforcing the child support order against the Defendant, Robert Carl
       Prokop, would be futile. Therefore, our office has filed criminal non-support
       charges against the defendant, and requests that the defendant be brought back to
       our jurisdiction to face these pending charges.

(Emphasis added.)

       The extradition coordinator in the Office of the Governor of West Virginia received the
Missouri documents and tendered them along with the Governor of West Virginia’s rendition
warrant to the Sheriff of Mercer County, West Virginia, by letter dated July 22, 2013.

        On August 5, 2013 the Circuit Court of Mercer County dismissed the fugitive
proceedings based on its belief that the rendition warrant had not been obtained. The circuit court
then ordered that petitioner be released from custody. Petitioner was taken to the sheriff’s
department and was awaiting his personal belongings from the Southern Regional Jail when the
prosecuting attorney’s office learned the extradition warrant had been obtained by the sheriff.
Petitioner was forthwith re-arrested and returned to the Southern Regional Jail. Petitioner was
officially served with the rendition warrant on August 7, 2013.

        Petitioner filed a petition for writ of habeas corpus on August 16, 2013. At the September
10, 2013, hearing on the habeas petition, a West Virginia police officer identified petitioner by
name, address, social security number, date of birth, gender, race, weight, and height. All of this
information matched the information contained within the Missouri arrest warrant describing
“Robert Carl Prokop” with one exception. In the arrest warrant, “Robert Carl Prokop” was
described as six feet, six inches tall; however, petitioner later entered evidence showing that he is
only six feet, two inches in height.

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         By order entered September 25, 2013, the circuit court concluded that “the extradition
papers are in proper form, that there is a criminal charge pending in Missouri, and that petitioner
[] is the person named in the extradition documents.” The circuit court then denied petitioner’s
petition for writ of habeas corpus with prejudice and ordered petitioner deliverable to the State of
Missouri within ten days. However, on September 27, 2013, the circuit court granted petitioner’s
motion for a stay of enforcement and execution of its order pending his appeal to this Court.

          Petitioner now appeals the circuit court’s order denying his petition for writ of habeas
corpus.

          In reviewing challenges to the findings and conclusions of the circuit court in a
          habeas corpus action, we apply a three-prong standard of review. We review the
          final order and the ultimate disposition under an abuse of discretion standard; the
          underlying factual findings under a clearly erroneous standard; and questions of
          law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

       Petitioner raises five assignments of error on appeal. Petitioner first argues that the circuit
court should have granted his habeas petition because it was undisputed that he was not present
in Missouri when the alleged crime was committed. In support of this argument, petitioner cites
to Syllabus Point 1 of In re the Extradition of Andrew Chandler, 207 W.Va. 520, 534 S.E.2d 385
(2000), in which we said,

                   “‘In habeas corpus proceedings instituted to determine the validity of
          custody where petitioners are being held in connection with extradition
          proceedings, the asylum state is limited to considering whether the extradition
          papers are in proper form; whether there is a criminal charge pending in the
          demanding state; whether the petitioner was present in the demanding state at the
          time the criminal offense was committed; and whether the petitioner is the person
          named in the extradition papers.’ Point 2, Syllabus, State ex rel. Mitchell v. Allen,
          155 W.Va. 530, 185 S.E.2d 355 (1971).” Syllabus Point 1, State ex rel. Gonzales
          v. Wilt, 163 W.Va. 270, 256 S.E.2d 15 (1979).

(Emphasis added).

        West Virginia Code § 5-1-7(g) provides that the governor may surrender any person who
is charged with “committing an act in [West Virginia] . . . intentionally resulting in a crime in the
state whose executive authority is making the demand . . . even though the accused was not in
that state at the time of the commission of the crime, and has not fled therefrom.” (Emphasis
added.) Similarly, in this case, petitioner is charged with committing the criminal act of failing to
pay child support pursuant to a Missouri court order while in West Virginia. Therefore, pursuant
to West Virginia Code § 5-1-7(g), it is irrelevant that petitioner was not in Missouri at the time of
his alleged crime. As such, the circuit court did not err in denying habeas relief in regard to this
assignment of error.



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        Petitioner next argues that the circuit court should have granted his habeas petition
because the West Virginia rendition warrant did not substantially recite the facts necessary to
sustain its validity in violation of West Virginia Code § 5-1-8(a) (“The warrant must
substantially recite the facts necessary to the validity of its issuance.”). Specifically, petitioner
contends that the rendition warrant was invalid because it failed to state that petitioner committed
a Missouri crime while he was in West Virginia. Petitioner also argues that the rendition warrant
was invalid because it wrongfully states that petitioner “has taken refuge within the State of West
Virginia.” Petitioner avers that he was a resident of West Virginia for the entire period of time
during which the alleged crime occurred and, therefore, he never left Missouri to seek refuge in
this State.

        This Court has said that West Virginia Code § 5-1-8(a) is satisfied if the warrant
“contains a statement that gives the person sought to be extradited reasonable notice of the nature
of the crime charged in the demanding state[.]” Syl. Pt. 2, in part, Cronauer v. State, 174 W.Va.
91, 322 S.E.2d 862 (1984). Here, the State of West Virginia employed a form warrant that
identified the person sought, the name of the complainant, the state and county where the person
was charged, and the crime charged. As such, there was sufficient evidence for the circuit court
to reasonably determine that the rendition warrant met the Cronauer “reasonable notice”
requirement. As for petitioner’s claim that the rendition warrant is invalid because it states that
he “has taken refuge within the State of West Virginia,” as we noted above, the Governor may
surrender any person in this state charged with “committing an act in this state . . . intentionally
resulting in a crime in the state whose executive authority is making the demand . . . even though
the accused . . . has not fled therefrom.” W.Va. Code § 5-1-7(g) (emphasis added). Thus,
whether or not petitioner fled from Missouri to West Virginia does not impact the validity of the
rendition warrant in this case. Hence, we find no error by the circuit court on this point.

        Petitioner’s third assignment of error is that the State of West Virginia failed to prove that
the person appearing before the circuit court was the same “Robert Carl Prokop” charged with
the crime of failing to pay child support in Missouri. Petitioner cites to the difference in his
actual height (six foot, two inches) from the height of the “Robert Carl Prokop” sought by
Missouri (six foot, six inches) as proof that the State failed to make its case. Petitioner also
argues that the State failed to meet its burden of proof because no live witness from Missouri
appeared to identify him as the “Robert Carl Prokop” sought by the State of Missouri. Finally,
petitioner claims that he was prejudiced at the evidentiary hearing in this matter because he was
not able to cross-examine his ex-wife who signed an affidavit stating that the picture attached to
the Missouri documents was a picture of the “Robert Carl Prokop” sought by the State of
Missouri.

        At petitioner’s evidentiary hearing below, the State provided evidence that petitioner
matched the “Robert Carl Prokop” described in the Missouri arrest warrant as to name, address,
social security number, date of birth, gender, race, and weight. Given the sufficiency of this
evidence, we cannot say that the circuit court erred in finding that petitioner was the same
“Robert Carl Prokop” sought by the State of Missouri. In regard to the disparity between
petitioner’s actual height (6’2”) and that noted on the arrest warrant for “Robert Carl Prokop”
(6”6”), that discrepancy was insufficient to negate all of the other evidence presented in this
case. As for petitioner’s claim that he was prejudiced by the State’s alleged failure to provide a

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“live witness” from the State of Missouri, petitioner cites to no law requiring such a witness. As
for petitioner’s ex-wife’s affidavit regarding the photograph of “Robert Carl Prokop,” petitioner
failed to object to its admission at the evidentiary hearing in this matter. As such, any objection
to the photograph has been waived. See Syl. Pt. 1, Maples v. W.Va. Dept. of Commerce, Div. of
Parks and Recreation, 197 W.Va. 318, 475 S.E.2d 410 (1996) (“A litigant may not silently
acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a
reason for reversal on appeal.”) Therefore, we find no error in regard to this assignment of error.

        Petitioner next argues that the circuit court erred in denying his habeas petition because
he was unlawfully incarcerated for one-hundred and five days (from April 22, 2013, until August
5, 2013) which is beyond the ninety-day limit allowed by law. In support of his argument,
petitioner cites to Syllabus Point 1 of State ex rel. Games-Neely v. Sanders, 220 W.Va. 230, 641
S.E.2d 153 (2006), in which we said “[a] defendant incarcerated under a fugitive warrant in this
State may not be held solely on that warrant for a period exceeding the aggregate of ninety days
as provided for under W.Va. Code §§ 5–1–9(f) and (h) (2002) (Repl.Vol.2002).” However, in
Games-Neely, we also said that the ninety-day period is tolled when the accused is held on
charges in addition to the fugitive warrant. 220 W. Va. at 234, 641 S.E.2d at 157. Petitioner was
incarcerated on April 22, 2013. On May 16, 2013, the prosecutor told the circuit court that it
would ask the magistrate court to dismiss the firearms charge. During the twenty-four day period
between April 22, 2013, and May 16, 2013, petitioner was being held on both the firearms
charge and the fugitive warrant. Hence, in accordance with Games-Neely, the ninety-day period
was tolled for those twenty-four days. As a result, petitioner’s ninety-day period did not begin to
run until May 16, 2013. Petitioner was released from custody on August 5, 2013, less than ninety
days after May 16, 2013. Therefore, petitioner was not incarcerated on the fugitive warrant for
more than ninety days. As such, we cannot say that the circuit court erred in denying habeas
relief on this assignment of error.

        All that said, even if petitioner had been incarcerated on the extradition warrant for more
than ninety days, his release from incarceration on August 5, 2012, subjected him to lawful re­
arrest pursuant to the rendition warrant, as follows:

       Under the provisions of W.Va. Code, 5-1-9, a fugitive incarcerated under a
       fugitive warrant in this State is entitled to release from custody after ninety days
       unless the Governor’s extradition warrant has been issued and executed. However,
       upon his release such person remains a fugitive subject to rearrest on the
       Governor’s warrant if he remains within this State.

Syl., Brightman v. Withrow, 172 W.Va. 235, 304 S.E.2d 688 (1983) (emphasis added).
Brightman is factually similar to the instant case. In Brightman, the petitioner was arrested on a
fugitive warrant that alleged he was a fugitive from Florida. The Circuit Court of Kanawha
County ordered that Mr. Brightman be confined for ninety days pending the issuance of a
rendition warrant. When the rendition warrant did not issue within ninety days later, Mr.
Brightman was released from incarceration. However, immediately following the hearing at
which the petitioner was ordered released, a deputy sheriff received the rendition warrant from
the governor’s office, and rearrested Mr. Brightman and returned him to the courtroom to answer
the warrant. Id. at 237, 304 S.E.2d 690. In Brightman, this Court stated that

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               The purpose of the ninety-day detention period where an arrest is made on
       a fugitive warrant is twofold. First, it provides a reasonable time to procure the
       necessary papers for preparation and execution of the Governor’s warrant.
       Second, the ninety-day period is designed to prevent an unreasonable period of
       preliminary detention awaiting the Governor’s rendition warrant. The fact that the
       fugitive is released from detention under a fugitive warrant does not destroy the
       statutory authority to arrest him on the Governor’s warrant.

Id. at 238, 304 S.E.2d 691-92 (emphasis added). In light of this Court’s holdings in Games-Neely
and Brightman, we find that petitioner is not entitled to relief on this assignment of error.

        Petitioner’s fifth and final assignment of error is that the State of Missouri is attempting
to collect a civil debt. Specifically, petitioner argues that the purpose of the criminal charge is
merely to compel the payment of child support which is a civil debt.

       West Virginia Code § 5-1-7(b), precludes extradition for collection of a civil debt, as
follows:

       Subject to the provisions of this article, the provisions of the Constitution of the
       United States controlling, and any and all acts of Congress enacted in pursuance
       thereof, it is the duty of the governor of this state to have arrested and delivered
       up to the executive authority of any other state of the United States any person
       charged in that state with treason, felony, or other crime, who has fled from
       justice and is found in this state: Provided, That the demand or application of the
       executive authority of such other state is accompanied by an affidavit or sworn
       evidence that the demand or application is made in good faith for the punishment
       of crime, and not for the purpose of collecting a debt or pecuniary mulct, or of
       removing the alleged fugitive to a foreign jurisdiction with a view to serve him
       there with civil process.

(Emphasis added.) However, the evidence in this case shows that “Robert Carl Prokop” was
charged with a criminal offense pursuant to Missouri Revised Statute § 568.040, which provides,
in part, as follows:

       1. A person commits the crime of nonsupport if he or she knowingly fails to
       provide adequate support for his or her spouse; a parent commits the crime of
       nonsupport if such parent knowingly fails to provide adequate support which such
       parent is legally obligated to provide for his or her child or stepchild who is not
       otherwise emancipated by operation of law.

As the circuit court noted in the order on appeal, “Failure to pay child support is a criminal act in
the State of Missouri as it is in West Virginia, punishable by incarceration—it is not an attempt
to collect a civil debt.” We concur and, therefore, find no error.

        Petitioner also claims that the State of Missouri failed to exhaust all civil remedies in
petitioner’s underlying child support case. In support of this argument, petitioner cites to West

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Virginia Code §§ 48-16-601 to -615, which authorizes Missouri’s child support enforcement
authorities to register and enforce petitioner’s Missouri child support order in West Virginia
pursuant to the Uniform Interstate Family Support Act (“UIFSA”). Petitioner claims that
Missouri started this process when it lodged a “Notice of Filing of Foreign Judgment from
Missouri” in the family court file in West Virginia, but that the State of Missouri never lodged
the actual Missouri child support order in that file. Therefore, petitioner contends that Missouri
could not have sought to enforce that missing order under UIFSA and, as such, all civil remedies
have not been exhausted in this case.

       The circuit court addressed this claim, as well, when it said,

               Missouri’s extradition documentation . . . includes a sworn affidavit under
       seal that it exhausted all civil remedies prior to instituting criminal charges. It is
       not for this [c]ourt to “look behind” the documents to determine that lawfulness of
       the charges.

We concur. As petitioner himself noted at the outset of his assignments of error,

       “‘the asylum state is limited to considering whether the extradition papers are in
       proper form; whether there is a criminal charge pending in the demanding state;
       whether the petitioner was present in the demanding state at the time the criminal
       offense was committed; and whether the petitioner is the person named in the
       extradition papers.’ Point 2, Syllabus, State ex rel. Mitchell v. Allen, 155 W.Va.
       530, 185 S.E.2d 355 (1971).” Syllabus Point 1, State ex rel. Gonzales v. Wilt, 163
       W.Va. 270, 256 S.E.2d 15 (1979).

Syl. Pt. 1, Chandler, 207 W.Va. at 521, 534 S.E.2d at 386. Therefore, the circuit court did not
err in refusing to go beyond its lawful duties in this matter.

        Finally, petitioner argues that Missouri Revised Statute § 568.040 is constitutionally
defective because it improperly shifts the burden to the defendant to prove an inability to pay
child support. Petitioner claims that the State should bear the burden of proof that a defendant
has the ability to pay court-ordered child support. The circuit court addressed this claim by citing
to Syllabus Point 3 of Chandler, in which we held that

       “The courts in an asylum state cannot determine constitutional questions with
       regard to crimes charged against fugitives in a demanding state in habeas corpus
       proceedings challenging the validity of extradition warrants. It is for the courts of
       the demanding state to determine such questions in the first instance.” Syllabus
       Point 1, State ex rel. Mitchell v. Allen, 155 W.Va. 530, 185 S.E.2d 355 (1971).

Id. We concur with the circuit court’s reasoning and, therefore, find that the circuit court did not
err in refusing to consider the constitutionally of Missouri Revised Statute § 568.040.

      For the foregoing reasons, we affirm the circuit court’s September 25, 2013, order denying
habeas relief.

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                                         Affirmed.

ISSUED: February 6, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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