Walker v. Langlois
| Decision Date | 02 July 1968 |
| Docket Number | No. 311-M,311-M |
| Citation | 104 R.I. 274,243 A.2d 733 |
| Parties | Jerome R. WALKER v. Harold V. LANGLOIS, Warden. P. |
| Court | Rhode Island Supreme Court |
On December 15, 1967, the petitioner, Jerome R. Walker, filed pro se a 'Motion To Vacate Sentence,' seeking thereby to test the legality of his confinement under a July 3, 1967 order of the superior court revoking his probation and committing him to the adult correctional institutions there to serve a three-year suspended sentence previously imposed. We ignored Walker's failure to resort to ordinary appellate processes, 1 we treated the motion as a petition for a writ of habeas corpus, and, on January 9, 1968, we ordered the writ to issue. R.I., 236 A.2d 446. The case was then assigned for hearing on oral argument to April 3, 1968. When Walker appeared in court on that day without counsel, we advised him of his right to be represented by an attorney, and explained to him the benefits to be gained therefrom. Thereupon, pursuant to his request, we directed the attorney, who had represented him at the revocation hearing in the superior court, to act on his behalf, and we continued the case to May 8, 1968, in order to allow ample time for the preparation of a brief.
The only substantial issue is the extent of the rights of an accused at a hearing for the revocation of a suspended sentence and probation.
On April 7, 1965, Walker, on a plea of guilty to a charge of unlawfully possessing a hypodermic needle and syringe, was sentenced by a justice of the superior court to serve a term of three years at the adult correctional institutions. Execution of the sentence, however, was suspended 2 for a probationary period of five years upon the condition, inter alia, that he not violate during his probation any criminal law of the United States, of this or of any other state, or of any municipality in this state. That condition was one of several incorporated in a printed document which Walker executed. Coincident with the suspended sentence, he was sentenced to a term of two years on an indictment charging unlawful possession of a narcotic drug. He was committed on the two-year sentence and served until released on December 31, 1966.
Following his release all apparently went well with Walker until February and March of the following year. Then, according to the information disclosed at the revocation hearing in the superior court, a series of significant events occurred which led to his present confinement.
Those events were described at the revocation hearing by Cass, a federal treasury department narcotics agent, as well as by Walker. The former testified that Walker had twice sold him what he represented to be heroin. The first sale was made late in February, but what he understood would be and what had been sold as hereoin was in fact a white non-narcotic powder; the second sale was on March 9, 1967. At that time Cass, upon payment of $40 to Walker, received two semi-transparent glassine envelopes, each of which contained a small amount (80-90 milligrams) of white powder which, when 'field tested' shortly after delivery, proved to contain hereoin. The results of that test, although not conclusive, were later confirmed after analysis of the powder by a government chemist. Although the chemist did not testify and was not available for cross-examination, his report, over objection, was admitted into evidence and marked as an exhibit.
While Walker denied selling any heroin, he agreed that he sold Cass some 'bad stuff' which he identified as the contents of a thorazine capsule. His explanation for passing off thorazine as heroin was that Cass 'kept bothering' him with requests to purchase narcotics in order to take care of two girls he, Cass, had 'hooked on drubs.' By selling him the 'bad stuff' Walker said that he figured 'I would make him mad enough to leave me alone.'
In any event, the sales to Cass led to the filing of a federal complaint against Walker on March 30, 1967, in which he was charged with knowingly and unlawfully selling two bags of a narcotic drug, to wit, heroin. On May 19, 1967, he was indicted by a grand jury in the United States District Court for the District of Rhode Island, 3 and on June 2, 1967, he pleaded not guilty to that indictment. Later that day, he was arrested by a Providence police officer on a capias and brought before the superior court where he was held without bail pending the receipt of a probation department report 4 concerning his conduct.
In due course the probation report was received, and, after some delays, the causes of which are without significance to this decision, the revocation hearing began on June 21. At the conclusion of that day's hearing Walker's request for a continuance, so that he might secure the attendance of witnesses, was granted, and the case was not again heard until July 3, 1967 when it was concluded. The justice presiding found Cass' testimony 'credible and convincing' and on that evidence, as well as on Walker's own testimony, concluded that the state had satisfied its burden of proving a violation of a condition of the suspended sentence. Accordingly, the suspension was removed, and Walker was committed on the sentence previously imposed.
Neither the brief filed by Walker pro se nor that filed by his counsel clearly reveals the basis for the claim that revocation of his suspended sentence was illegal and the resultant confinement therefore unlawful. They cite various decisions including several of the United States Supreme Court which relate generally to due process requirements and specifically to an accused's constitutional entitlement to counsel at the 'critical stage' of a criminal proceeding. Included among them is Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, decided only several months ago, where proceedings for the revocation of probation or of a deferred sentence were determined to be a 'critical stage.' Notwithstanding his reliance on the right-to-counsel cases, 5 he admits that he had counsel at the revocation hearing, and he then concludes his argument on this point with a non sequitur saying that '* * * he wishes this court to impose more safeguards at such a hearing, and as to the procedure before such a hearing, in accordance with the emphasis placed there by the United States Supreme Court.' What safeguards or what emphasis he wants in addition to those he received, he does not tell us. Neither does he suggest that he was denied any essential rights or basic protections.
The generality, as well as the vagueness and inconclusiveness, of his argument is attributable perhaps to the absence of any real basis for complaint. The probationary sentence he received was, after all, a matter of grace. It rested entirely within the discretion of the sentencing justice whether to execute or to suspend the three-year sentence. That it was suspended and Walker placed on probation in no way reflected on his guilt, but indicated only a concern of the sentencing justice that he be provided with an opportunity to rehabilitate himself without confinement so that society might thereby be protected from his potential for misconduct.
The suspension of the execution of his sentence and the probation he received were not, however, unqualified. They were instead specifically subject to Walker's compliance with certain conditions. The contemplation was that his compliance would legally entitle him to freedom during the probationary period; likewise, it was contemplated that a violation of the conditions might result in a revocation of the suspension and of his being required to serve the three-year term. The choice was Walker's-to observe or not to observe all of the conditions, including the one which required that he demean himself properly according to law. When it was ascertained that he had been indicted on a federal narcotics charge, action as provided by statute 6 was taken and Walker was brought before the superior court for a determination of whether or not the restrictions imposed had been breached.
Walker does not suggest that he lacked proper notice of the revocation hearing which then followed. Nor is there any question that he was present and represented by counsel throughout; that he was afforded a full and complete opportunity to hear and to controvert the evidence against him; and that he offered evidence in his own defense.
Walker had, then, both notice and representation by counsel. In addition he offered evidence in his own behalf, and he heard and cross-examined the only witness who testified against him. Clearly on our statute and on the present state of the authorities, he was entitled to no greater protections. Whether either the constitution or fundamental fairness and fair play entitled him as of right to the protections afforded is an open question. In Harris v. Langlois, 98 R.I. 387, 202 A.2d 288, we said that notice of an alleged breach of a condition of suspension and a hearing before revocation are privileges conferred by statute; that they are not rights guaranteed under the constitution. We relied on the often cited Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 820, 79 L.Ed. 1566, 1569, where Mr. Justice Cardozo with customary acuity and cogency wrote:
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...In the past we have spoken in terms of evidence which would 'reasonably satisfy that there had been a violation.' Walker v. Landlois, 104 R.I. 274, 243 A.2d 733, 737 (1968). We adopt that standard of proof for bail revocation hearings as one which will require the state to go beyond probabl......
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