Roy v. PerrinRoy v. Perrin
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- Before:
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This is an appeal from the denial of a petition for writ of habeas corpus. The plaintiff sought the writ alleging that: (1) his plea of guilty to second-degree murder was involuntary; (2) he was incompetent to plead guilty; (3) under
Both parties appeal from the court’s decree. The plaintiff appeals those portions of the decision which relate to the finding that he was competent to plead guilty, that his plea was voluntary, and that, under
On October 3, 1976, a juvenile petition (
On October 27, 1976, in the Manchester District Court
(O’Neil,
J.) the plaintiff, represented by counsel, waived a certification hearing (
On November 4, 1976, the district court certified the plaintiff to the superior court for treatment as an adult, after considering a comprehensive probation-investigation report, which had been reviewed by both the plaintiff and the State, and other relevant information before it.
The trial court then addressed numerous questions to the plaintiff about his plea, was satisfied that the plaintiff entered it freely, voluntarily and intelligently, and accepted it. During the sentencing hearing, the court read the probation-investigation report and numerous other documents transferred from the district court and gave all parties an opportunity to be heard on the question of what sentence should be imposed. After hearing the State’s and the plaintiff’s counsel’s sentence recommendations, and giving the plaintiff himself an opportunity to speak in his own behalf, the trial court imposed a sentence of “fifty years to life.”
Thereafter, the plaintiff obtained new counsel and moved to withdraw his certification as an adult, his waiver of indictment, and plea of guilty. After a hearing in March 1977, that motion was denied {King, J.). An appeal was taken to this court, and we affirmed the ruling of the trial court, holding that the record fully supported a finding that his plea of guilty and waiver of a certification were voluntary and knowing and that the certification was made on evidence which furnished a sufficient basis for the order. State v. Roy, 118 N.H. 2, 3, 381 A.2d 1198, 1199 (1978). Present counsel later became involved in the case, and, in November 1980, habeas corpus proceedings were begun on behalf of the plaintiff.
The Superior Court
{Dalianis,
J.) considered the evidence pre
Review of the transcript of the habeas corpus proceeding indicates that the trial court employed the correct standard in assessing whether the plaintiff was competent to plead guilty. The standard for assessing competency to plead guilty is the same as that for assessing competency to stand trial. See Allard v. Helgemoe, 572 F.2d 1, 3, cert. denied, 439 U.S. 858 (1978). That test is: “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); Allard v. Helgemoe, 572 F.2d at 3; see United States ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (2d Cir.), cert. denied, 408 U.S. 927 (1972). A plaintiff in a habeas corpus proceeding must prove by a preponderance of the evidence that he did not meet this test of competency at the time of his guilty plea. Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir. 1978); see ABA Standards of Criminal Justice, Post-conviction Remedies, std. 22-4.6(d) (Approved Draft 2d Ed. 1980).
The plaintiff argues that the trial court erred in finding that he had not met his burden of proving that he was incompetent to plead guilty. The plaintiff claims that the court’s finding was clearly against the weight of the evidence presented by the plaintiff concerning his age and psychological disabilities.
The weight to be given testimony depends on the credibility of the witnesses, and the credibility of witnesses is for the trial court to determine. State v. Hardy, 120 N.H. 552, 554, 419 A.2d 398, 400 (1980). The plaintiff presented two witnesses: an expert who testified concerning his alleged psychological disabilities at the time of his plea, and an attorney who had represented the plaintiff for the first time after the plea and had concluded that the plaintiff did not understand the nature of the criminal proceedings against him.
The trial court, however, in reaching its decision, elected to rely on the testimony of three attorneys who had either repreented or spoken with the plaintiff before or at the time he entered
The court could have disbelieved any part of the testimony even if no evidence was introduced to rebut it. State v. Rullo, 120 N.H. 149, 152, 412 A.2d 1009, 1012 (1980); St. Pierre v. Vitek, 114 N.H. 766, 770, 330 A.2d 117, 119 (1974). The fact that some testimony was that of an expert did not compel a different conclusion. State v. Rullo, 120 N.H. at 152, 412 A.2d at 1012; State v. Hesse, 117 N.H. 329, 332, 373 A.2d 345, 347 (1977); St. Pierre v. Vitek, 114 N.H. at 770, 330 A.2d at 119. See also State v. Hudson, 119 N.H. 963, 966-67, 409 A.2d 1349, 1351 (1979). Because we cannot find that no reasonable person could have come to the same conclusion as to the weight to be given to the conflicting testimony in this case, we defer to the trial court. State v. Hardy, 120 N.H. at 554, 419 A.2d at 400; see 93 Clearing House, Inc. v. Khoury, 120 N.H. 346, 350, 415 A.2d 671, 679 (1980).
The plaintiff argues next that the trial court erred when it denied his request to reopen the habeas corpus proceeding to present rebuttal evidence on the issue of his competency to plead guilty. After both sides had rested, the plaintiff moved to reopen the case to present prison records which would purportedly establish the number of times two of the attorneys who had represented him at different times had visited him at the State prison. The reason offered for presenting this additional evidence was to support the plaintiffs contention that the attorney who had testified on his behalf at the habeas corpus hearing had more opportunities to converse with and observe him than one of the attorneys who was called by the State as a witness. The attorney who first represented the plaintiff before the guilty plea had concluded that his client was competent, while the attorney who represented him after the guilty plea came to the opposite conclusion.
The admissibility of evidence in rebuttal is committed to the sound discretion of the trial judge, and the court’s ruling will not be disturbed unless there has been a clear abuse of that discretion.
Taylor v. Gagne,
121 N.H. 948, 949, 437 A.2d 262, 263 (1981);
United States v. Chrzanowsky,
502 F.2d 573, 576 (3d Cir. 1974);
see State v. Donovan,
120 N.H. 603, 607, 419 A.2d 1102, 1105 (1980). Clearly, there was no abuse of discretion in this case because the testimony offered by the plaintiff was not relevant to his compe
The plaintiff next contends that even if he was competent to plead guilty, he did not voluntarily and intelligently waive the constitutional rights one forfeits by entering such a plea. This argument was addressed in State v. Roy, 118 N.H. 2, 3, 381 A.2d 1198, 1199 (1978), where we held that the record supported the trial court’s finding that the defendant’s guilty plea was voluntary and intelligent. Further, it is to be noted that the Superior Court (.Dalianis, J.) at the habeas corpus hearing also considered this issue and concluded that because the trial judge properly conducted a colloquy with the plaintiff establishing on the record that the plaintiff’s plea of guilty was voluntary and knowing, Boykin v. Alabama, 395 U.S. 238 (1969), and because the plaintiff had not introduced new evidence at the habeas corpus hearing showing his incapacity to understand abstract concepts associated with his plea, he had failed to prove by a preponderance of the evidence that his guilty plea was unknowing and involuntary.
The plaintiff asserts, that in the light of the evidence that was before the trial court at the habeas corpus hearing, its analysis of the issue of voluntariness was incomplete as a matter of law. He argues that actual comprehension of one’s rights is only one aspect of voluntariness and that the trial court failed to consider additional factors, such as his age, mental condition, the circumstances of his incarceration and the rush of events at the time of the plea, in establishing whether his plea was truly voluntary.
Even assuming that the plaintiff’s capacity to understand his rights may have been affected by these factors, his guilty plea would not automatically be rendered invalid. There is no fixed age limitation on one’s ability to plead guilty. See Commonwealth v. Alston, 373 A.2d 741, 744 n.4 (Pa. Super. Ct. 1977) (appellant fifteen years old); Commonwealth v. Moore, 440 Pa. 86, 88, 91, 270 A.2d 200, 201, 203 (1970) (thirteen-year-old defendant). Furthermore, deficiencies in a criminal defendant’s physical and mental make-up do not necessarily compel a finding that his plea was involuntary and unintelligent. St. Pierre v. Vitek, 114 N.H. at 770, 330 A.2d at 119. Moreover, even a criminal defendant’s inability to understand part of the offense with which he is charged, despite the best efforts of his attorney to explain it to him, does not, without more, result in an unconstitutional guilty plea. Allard v. Helgemoe, 572 F.2d at 6.
The test set forth in
Allard
to determine whether a guilty plea is valid takes into account the information available to help a
In a habeas corpus proceeding, the burden of proof is on the plaintiff to prove by clear and convincing evidence that his plea was not entered intelligently or voluntarily and that withdrawal of the plea must be allowed to correct a manifest injustice. State v. Besso, 72 Wis. 2d 335, 344, 240 N.W.2d 895, 899 (1976); ABA Standards for Criminal Justice, Plea Withdrawal, std. 14-2. lb(ii) (Approved Draft 2d Ed. 1980); see State v. Laroche, 117 N.H. 127, 131, 370 A.2d 631, 634 (1977).
We are satisfied that the trial court properly took into account the factors set forth in Allard v. Helgemoe, 572 F.2d at 3, as well as the special concerns of age and maturity of this particular juvenile, Fare v. Michael C., 442 U.S. at 725. Although the trial court erroneously employed a preponderance of the evidence standard in determining that the plaintiff had not met his burden of proof on this issue, this error did not prejudice the defendant because it placed a lesser burden on him than if the correct standard had been used. See State v. Koski, 120 N.H. 112, 115, 411 A.2d 1122, 1124 (1980). Because the trial court’s decision was well supported in the record, we affirm its determination that the defendant’s plea of guilty was voluntary and knowing. See State v. Torres, 121 N.H. 828, 831, 435 A.2d 527, 528-29 (1981).
The plaintiff argues that his election to be tried as an adult renders the entire sentencing process in his case invalid
per se,
because a juvenile of less than seventeen cannot waive certification pursuant to
At the habeas corpus hearing, the Superior Court
(.Dalianis,
J.) ruled that because the record showed that the district court judge made his decision after considering the severity of the alleged offense and the probation-investigation report, the waiver of a certification hearing by the plaintiff had no effect on
As did the superior court, we conclude, after a review of the record, that the district court’s order of certification was based, not on the act of the plaintiff’s election to be certified as an adult, but on the facts embodied in the probation-investigation report and on the seriousness of the offense charged.
“Election by Child. In a juvenile court, at any time before a hearing on the allegations of a petition filed pursuant toRSA 169:3 , a child who is charged with an act of delinquency committed after his seventeenth birthday may by motion elect to be tried as an adult and to have his case dealt with in the same manner as any other criminal prosecution.”
Although we agree with the plaintiff that his election to be tried as an adult, standing alone, could not be the basis for the district court’s decision to certify him as an adult, we do not construe
Kent v. United States, 383 U.S. at 557, sets forth procedural guidelines to ensure that the statutory requirements of “full investigation,” see id. at 553, are met before a juvenile is certified as an adult. See Breed v. Jones, 421 U.S. 519, 537 (1975) (although a hearing is required, the nature or quantum of evidence necessary to support transfer of a juvenile to adult court are matters for the States). The safeguards include (1) a certification hearing, (2) access to any record the court considers in its decision, and (3) a statement of the reasons or considerations for the court’s decision. Kent v. United States, 383 U.S. at 557.
The procedural safeguards in
Kent
were met: the plaintiff had competent counsel; he was given the opportunity to have a
Finally, we consider the State’s argument that the trial court erred in ruling that the plaintiff must be resentenced because the provisions of
In connection with the certification process, the probation department undertook a comprehensive background investigation of the plaintiff, and its written report was considered by the district court at the hearing held on October 27, 1976. The report included, inter alia, the plaintiffs social history, a report on his prior contacts with law enforcement, a report of his behavior and accomplishments in school, information concerning his level of maturity, and a detailed description of the circumstances of the offense.
Testimony in the record before us indicates that Attorney Holland, then counsel for Cleo Roy, himself reviewed the probation report, reviewed it with the probation officer, reviewed it with his client and, as he states: “went over it with him line by line to determine whether he had any additions, corrections, alterations or deletions or changes of any kind whatsoever. . . . Cleo . . . had no changes at all in the report.” At the sentencing hearing held in the superior court less than two weeks later, on November 9, 1976, upon motion of the plaintiffs attorney, the report was incorporated into the proceedings and the judge read it. Because the sentencing judge had before him and read a detailed and up-to-date probation
Further, this State’s contemporaneous objection rule requires that objections and exceptions be taken at the appropriate time. Martineau v. Perrin, 119 N.H. 529, 531, 404 A.2d 1100, 1102 (1979). The time to object to any perceived irregularities in the sentencing procedure was at the sentencing hearing. That this is a proceeding upon a petition for writ of habeas corpus does not affect the applicability of the rule. Id. at 532, 404 A.2d at 1102; Wainwright v. Sykes, 433 U.S. 72, 88-89 (1977).
We note that not only did the plaintiff fail to object to the sentencing procedure at the time, but he also failed to raise any objections to the sentencing procedures when he had subsequent opportunities to do so (when he moved to withdraw his plea of guilty and waiver of certification hearing and when he appealed the trial court’s denial of those motions).
Where the plaintiff has remained silent for four years before raising his objection, and where there are no circumstances justifying his delay or excusing his failure to object during the course of the sentencing hearing, he should not be permitted to raise his objection now. See Diaz Torrez v. United States, 564 F.2d 617, 619 (1st Cir. 1977). For the foregoing reasons, the trial court’s order that the plaintiff be resentenced is vacated, and the petition is dismissed.
Dismissed.
King, C.J., and Batchelder, J., did not sit; the others concurred.