Cote v. StateCote v. State
- Reporters:
- ,
- Before:
- Dufresne
Indicted for escape from the Men’s Correctional Center in Windham, Maine, petitioner, Patrick J. Cote, chose to enter a plea of guilty to the charge. The arraignment and acceptance of the plea took place on January 23, 1969. Incarcerated at the Maine State Prison under sentence to a term of not less than U/2 years and not more than 3 years, Cote filed a petition for the writ of habeas corpus pursuant to 14 M.R.S.A., §§ 5502-5508. He was then represented by court-appointed counsel other than the attorney who represented him at the trial level. He now makes the commonplace accusations that his plea was not made voluntarily and understandingly. He attributes his judicial confession to inadequate advocacy of incompetent counsel.
The petitioner initially claims that his plea is involuntary and that he is entitled to plead anew because his plea was accepted without full adherence to Rule 11 procedural requirements.
Our Rule 11, Maine Rules of Criminal Procedure, effective since December 1, 1965, in pertinent part provides as follows:
“ * * * The court may refuse to accept a plea of guilty, and shall not accept such plea * * * in any felony proceeding without first
(a) making such inquiry as may satisfy it that the defendant in fact committed the crime charged, and,
(b) addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge. * * * ” (Emphasis supplied.)
Thus, at the time of the Court’s acceptance of Cote’s plea of guilty on January 23, 1969 the Rule was an integral part of the prescribed criminal procedures under which guilty pleas to felony charges could be accepted by trial judges. Rules of court duly authorized by, and not repugnant to, law, which establish the manner of conducting the civil and criminal business in our courts of justice, have the force of law, are binding upon the courts and cannot be dispensed with merely to suit the circumstances of any particular case. See, Cunningham v. Long, 1926, 125 Me. 494, 135 A. 198; Hutchins v. Hutchins, 1939, 136 Me. 513, 4 A.2d 679; Gosselin v. Better Homes, Inc., Me. 1969, 256 A.2d 629. Criminal rules, as well as criminal statutes, are to be strictly interpreted in favor of a defendant where substantial rights are involved. Tuttle v. State, 1962, 158 Me. 150, 180 A.2d 608, certiorari denied 371 U.S. 879, 83 S.Ct. 151, 9 L.Ed.2d 116.
In the acceptance of guilty pleas to felonious charges, our Rule 11 casts two distinct obligations upon the trial court. As one of the obligations to be performed, the court must satisfy itself that the defendant in fact committed the crime charged and this duty, the Rule says, may be complied
In the instant case, both directives of the Rule were disobeyed as the following colloquy at the plea-taking proceeding discloses:
“Q Patrick Cote?
A Yes.
Q You have now received a copy of the indictment ?
A Yes, Your Honor.
Q You have discussed it with your counsel, Mr. * * *?
A Yes.
Q You understand the charge in the indictment made against you ?
A Yes.
Q You understand the penalties attached thereto?
A Yes.
The Court: Mr. [Counsel], you have consulted with Mr. Cote?
Mr. [Counsel]: Yes, Your Honor.
The Court: And discussed the indictment?
Mr. [Counsel]: Yes
The Court: Does he understand the charges made against him ?
Mr. [Counsel] : Yes, sir.
The Court: Is he ready to be arraigned ?
Mr. [Counsel]: Yes, sir.
The Court: He may be arraigned.
Q (By the Court): Mr. Cote, before accepting the plea of guilty, the Court will inquire of you — are you pleading guilty because you are as a matter of fact guilty and for no other reason ?
A Yes, Your Honor.
Q Has anyone threatened you or coerced you into making such a plea?
A No.
Q Has anyone made any promises of leniency to get you to enter such a plea?
A No, sir.
The Court: You recommend the Court accept the plea of guilty, Mr. [Counsel] ?
Mr. [Counsel]: Yes, Your Honor.
The Court: The plea is accepted.”
Mere acknowledgement by the accused personally, on the Court’s inquiry, that he understands the charge and the range of penalties attached thereto, even when supported by the statement of counsel that the defendant is knowledgeable therein, does not satisfy the requirements of our Rule 11. See, Child v. State, Me.1969, 253 A.2d 691. The record further reveals that no inquiry was conducted in any form by the Court below to satisfy itself that the defendant had in fact committed the crime of escape to which he was pleading guilty.
The petitioner contends that the complete failure of the trial Court to satisfy the demands of our Rule 11 precluded it from accepting the guilty plea and fatally tainted the conviction, so that it was error for the post conviction habeas Court to deny the requested relief of setting aside the plea,
Such was the relief granted in McCarthy v. United States, April 2, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, where the Supreme Court of the United States interpreted
The Supreme Court’s rationale was expressed in clearly defined objectives:
“We thus conclude that prejudice inheres in a failure to comply withRule 11 , for non-compliance deprives the defendant of the Rule’s procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding that a defendant whose plea has been accepted in violation ofRule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate.”
On May 5, 1969 the Supreme Court limited the McCarthy relief to those federal defendants whose guilty pleas were accepted after April 2, 1969, the date of the McCarthy decision. Halliday v. United States, May 5, 1969, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16. Even though the Court in McCarthy was not adopting a new constitutional concept, since it expressly stated that its ruling was not based on constitutional grounds, nevertheless, in Halliday, supra, it sanctioned, in determining the issue of ret-roactivity of McCarthy, the use of the same criteria employed in deciding whether constitutionally grounded decisions that depart from previous practice should be applied retroactively. The Halliday Court concluded that
“ * * *, in view of the general application ofRule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance withRule 11 , we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance withRule 11 .”
In
McCarthy,
supra, and
Halliday,
supra, the voluntariness section of
Even in the face of Rule 2, M.R.Crim.P., which says
—(t)hese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay, — (emphasis added)
our Court did not give relief to Child for the apparent reason that the
McCarthy
ruling, if controlling, was inapplicable since, as determined by
Halliday,
it was not to be given retroactive application. We need not in this case decide, nor do we intimate, that the Court was right or wrong in summarily
—[the] making [of] such inquiry as may satisfy it that the defendant in fact committed the crime charged—
shall be forthcoming except in the case of “those defendants whose guilty pleas were accepted after April 2, 1969.” Undoubtedly, this Court had come to the conclusion, as did the
McCarthy
Court, that compliance with the procedural requirements of our
The
McCarthy
ruling was not of constitutional dimension nor did the
McCarthy
or
Halliday
Courts purport to impose upon the State Courts the strictures of Federal
We must, however, consider the effect of Grass v. State, March 16, 1970, Me., 263 A.2d 63, which followed the
Child
decision. In that case, the petitioner for the writ of habeas corpus
sought
relief from his guilty plea on the ground that
Similarly, we hold that the guilty plea in the instant case, received and accepted on January 23, 1969, some four months before the
Child
decision, is not ipso facto vitiated by violation of
Since the Grass case involved both the accuracy of the plea and its voluntariness, this Court then considered whether or not the Boykin ruling that
“[i]t was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.”
necessitated granting relief to Grass as a requirement of due process.
Several federal constitutional rights are waived when a plea of guilty is entered in a State criminal trial: the right to trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; the right to confront one’s accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 923; the privilege against compulsory self-incrimination, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; the right to present witnesses in one’s defense, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019; the right to the standard of proof beyond a reasonable doubt undergirding a conviction, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
This Court in Grass stated:
“The presence of a post-conviction record which fully supports the finding below that the plea was voluntarily and understandingly made satisfies the constitutional requirements of Boykin, even if retroactively applied.”
Thus, our Court ruled in Grass that there was an affirmative showing of a voluntary and intelligent plea from the post-conviction record and that the intended scope of Boykin did not preclude such a procedure where the record at the plea-taking proceeding was inadequate. Resort to post-conviction remedies to attack the voluntariness of a guilty plea is equally appropriate in such an instance as it is to test the constitutional propriety of any other waiver of a constitutional right. It is the accepted way to correct constitutional defects in a conviction. The McCarthy ruling was to the contrary, but only affected the Federal Courts and was a policy decision without any constitutional overtones applicable to the State Courts.
We are aware that Justice Douglas who wrote the opinion for the Court in Boykin, in his concurrence in Santobello v. New York, December 20, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, did use very broad language in connection with the voluntariness of plea based on a bargain which the prosecution did not keep.
“The decisions of this Court have not spelled out what sorts of promises by prosecutors tend to be coercive, but in order to assist appellate review in weighing promises in light of all the circumstances, ‘all trial courts are now required to interrogate the defendants who enter guilty pleas so that the waiver of these fundamental rights will affirmatively appear in the record. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.” (Emphasis ours)
“This is a state case over which we have no ‘supervisory’ jurisdiction; andRule 11 of the Federal Rules of Criminal Procedure obviously has no relevancy to the problem.”
We did further say in Grass, however, by way of dicta that
“McCarthy seems also to interpretRule 11 as requiring that the trial court satisfy itself by interrogation of the defendant that there is a factual basis for the plea.
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In effect, in that post-conviction relief case [Child] we construed McCarthy as requiring that the sentencing Justice must address the defendant personally and satisfy himself through that interrogation that ‘the defendant in fact committed the crime charged’ and must ascertain by the same means that ‘the plea is made voluntarily with understanding of the nature of the charge.’ Our holding in Child was designed to give the McCarthy construction to our M.R.Crim.P.,Rule 11 .”
Since Boykin, the Supreme Court of the United States decided the case of North Carolina v. Alford, November 23, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. In Alford, the accused entered a plea of guilty to second-degree murder while asserting at the same time that he had not shot the victim. Before the plea was accepted, however, the trial Judge received sworn testimony of witnesses which gave information respecting the events on the night of the alleged murder and thus satisfied himself from evidence other than statements of the accused that there was a factual basis for the plea. The Court ruled that “[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence [upon plea of guilty] even if he is unwilling or unable to admit his participation in the acts constituting the crime.”
In the light of
Alford,
we must recede from the dicta expressed in
Grass.
The obligation put upon the trial court by
Notwithstanding the non-retroactive aspect of the
Child
and
Grass
rulings, we must, nevertheless, determine whether or not the petitioner’s plea of guilty to escape was in fact voluntary within the concepts of the due process requirements of our constitutions. We begin with the proposition that a judgment of conviction, whether based upon a finding of guilty by the jury or upon the entering of a plea of guilty by the defendant, carries with it a presumption of regularity which casts the burden of proof upon the petitioner in post conviction habeas corpus proceedings, albeit only by the fair preponderance of the evidence. Bennett v. State, 1965, 161 Me. 489, 214 A.2d 667. Thus, with
pre-McCarthy
and
pre-Child
guilty pleas, the habeas corpus petitioner had the burden of proof by the fair preponderance of the evidence that he did not enter his guilty plea freely, knowingly and understandingly. Gordon v. State, Me.1967, 232 A.2d 527; Commonwealth ex rel. Crosby v. Rundle, 1964, 415 Pa. 81, 202 A.2d 299, cert. denied 379 U.S. 976, 85 S.Ct. 677, 13 L.Ed.2d 567;
The Justice in the post conviction habeas corpus proceeding found that, although there was a complete failure on the part of the presiding Justice at the arraignment level to comply with the requirements of
We reach the same conclusion respecting the petitioner’s complaint that he was denied effective assistance of counsel by reason of the fact his plea of guilty was tendered within some 30 minutes to an hour from the time of appointment of counsel.
The Justice below found from the petitioner’s testimony that no prejudice resulted to him. This finding was not clearly erroneous and must stand.
In State v. Rastrom, Me.1970, 261 A.2d 245, our Court recognized that, when an issue is raised of ineffective representation of counsel by reason of the brevity of trial preparation time, an appellate court must satisfy itself not only whether any abuse of discretion has been shown in the denial of a motion for continuance, but whether the defendant has been deprived of his constitutional right to effective representation by counsel. In Rastrom, we concluded as did the First Circuit not to adopt the rule of presumption of the Fourth Circuit to the effect that a mere showing of brevity of time for trial preparation raises a presumption of prejudice. See, Rastrom v. Robbins, 1 Cir. 1971, 440 F.2d 1251. We re-affirm what we said in Rastrom, Me.1970, 261 A.2d 245 :
“We are not persuaded that there are compelling reasons for departing from our traditional rule requiring some proof of actual prejudice. If prejudice occurs, it will frequently become apparent upon an examination of the trial record. It is not unreasonable to require some affirmative indication of the nature of the adverse consequences of inadequate time for preparation.
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We are satisfied in any event that cases involving adequate opportunity for preparation must be decided on a case by case basis and ordinarily the trial record should be available for scrutiny by the appellate court.”
Unlike Rastrom, Cote had accepted counsel representation at the District Court
There was no error and the entry will be
Appeal denied.
POMEROY, J., did not sit.