Higgins v. Robbins

• Decision Date: 28 April 1970
• Citation: 265 A.2d 90
• Parties: Richard W. HIGGINS v. Allan L. ROBBINS, Warden. Richard W. HIGGINS v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 90

265 A.2d 90

Richard W. HIGGINS v. Allan L. ROBBINS, Warden.

Richard W. HIGGINS v. STATE of Maine et al.

Supreme Judicial Court of Maine.

April 28, 1970.

Rudman, Rudman & Carter, by Paul L. Rudman, Bangor for plaintiff.

Garth K. Chandler, Asst. Atty. Gen., Augusta, for defendants.

Before WILLIAMSON, C. J., and WEBBER, DUFRESNE, and POMEROY, JJ.

WILLIAMSON, Chief Justice.

These are appeals by the petitioner Richard W. Higgins in two cases: Richard W. Higgins v. Allan L. Robbins (Superior Court #8576-Law Court #970), a complaint for mandamus and declaratory judgment, and Richard W. Higgins v. State of Maine and Allan L. Robbins, Warden (Superior Court #8863-Law Court #975), a post-conviction habeas corpus petition brought under 14 M.R.S.A. § 5502 et seq. The petition chose to prosecute pro se both cases before the sitting Justice. On appeal he is represented by Court-appointed counsel. By stipulation and agreement the cases are considered jointly on briefs filed in Law Court-#970-and further, the issues are, or more accurately the prime issue is, identical in both cases.

The sitting Justice in #970 on January 6, 1969, entered a declaratory decree or judgment that petitioner's sentence imposed for an offense committed while on parole should be served concurrently with the existing term being served while on parole, and on January 27, 1969 entered a correcting decree or judgment that the sentence should commence on the expiration of the existing term. The latter decree was entered on motion of the respondent Warden made 'pursuant to M.R.C.P., Rule 60(b)(5).' The pertinent parts of the decrees, including the facts applicable to both #970 and #975 (habeas corpus) are set forth in Appendix A.

At the outset we are confronted with issues of jurisdiction. That the parties did not question jurisdiction of the Court below in either case is not material to our inquiry. We may examine jurisdiction at any time and on our own motion. Eastern Maine Elec. Coop. v. Maine Yankee Atom. P. Co., Me.,225 A.2d 414; Hutchins v. Hutchins, 136 Me. 513, 4 A.2d 679; Stinson v. Taylor, 137 Me. 332, 17 A.2d 760; Angell v. Gilman, 144 Me. 202, 67 A.2d 15; M.R.C.P. Rule 12(h)(3); 1 F.McK. & W.Me.Civ.Pr.2d § 12.7.

Law Court #970-Declaratory Judgment-Mandamus

The relief sought by #970, namely, the fixing of the commencement of the prison sentences, was available to the petitioner under post-conviction habeas corpus statute 14 M.R.S.A. § 5502 et seq. In Green v. State, Me., 245 A.2d 147, we held when the first of consecutive sentences is set aside for error, the later outstanding sentence commences at the date of imposition and not when the first sentence is declared void. The Court determined that the petitioner was entitled to relief limited to giving credit from the day he was received in prison on the valid subsisting sentence. Green overruled the earlier case of Smith v. Lovell, 146 Me. 63, 77 A.2d 575; Mottram v. State, Me., 232 A.2d 809; Hartley v. State, Me., 249 A.2d 38.

A proceeding for a declaratory judgment, however, may be maintained even though another remedy is available. Maine Broadcasting Co. v. Eastern Banking Co. et al., 142 Me. 220, 49 A.2d 224: Uniform Declaratory Judgments Act, 14 M.R.S.A. § 5951 et seq., and particularly Section 5953. Cf. Robbins v. Reed, 106 U.S.A.pp.D.C. 51, 269 F.2d 242 (1959). See Borchard Declaratory Judgments 2d Ed. pp. 232, 236, 316; 1 Anderson Declaratory Judgments § 198 (2d ed.) 22 Am.Jur.2d, Declaratory

Judgments § 14; 26 C.J.S. Declaratory Judgments § 17

Post-conviction habeas corpus takes the place of habeas corpus, writ of error, and coram nobis. 3 Maine Pract. Rules (Glassman) § 35.3; Rule 35(b), M.R.Crim.P. '* * * it comprehends and takes the place of all other common law remedies which have heretofore been available for challenging the validity of a conviction and sentence and shall be used exclusively in lieu thereof.' 14 M.R.S.A. § 5502. A declaratory judgment is obviously not a common law remedy, therefore the Court was not in terms denied the jurisdiction, to be exercised in its sound discretion, to entertain and decide a complaint for a declaratory judgment on the facts presented. Jones v. Maine State Highway Commission, Me., 238 A.2d 226.

The fact that the complaint by the petitioner was for both a mandamus against the Warden and a declaratory judgment did not oust the Court below from jurisdiction. Mandamus we have held would not lie against the Warden under our post-conviction habeas corpus procedure. Freve v. State, Me., 230 A.2d 230. The Court below was entitled to find a valid reason for a declaratory judgment without consideration of the petitioner's request for the more drastic action of mandamus. Borchard, supra, p. 360. In short, relief by declaratory judgment did not rest on jurisdiction to issue a mandamus.

In the absence of a post-conviction relief statute such as ours, jurisdiction to enter a declaratory judgment to establish the commencement of a sentence rests on solid authority. Brown v. Commissioner of Corrections, 336 Mass. 718, 147 N.E.2d 782, 68 A.L.R.2d 708. In Woods v. State Board of Parole, 351 Mass. 556, 222 N.E.2d 882, 883, 884, the Massachusetts Court said:

'By final decree Woods' bill was dismissed on the ground that G.L. 231A (declaratory judgments statute) is not 'applicable to the determination of rights of persons serving criminal sentences in relation to release dates from * * * (such) sentences."

'The Attorney General correctly concedes that the trial judge (if he meant that declaratory relief is never available with respect to criminal sentences) was in error and gave an incorrect reason for dismissing the bill. General Laws c. 231A (which, in accordance with § 9, is to be liberally construed) does not prevent declaratory relief concerning criminal sentences and their incidents, where other prerequisites of granting such relief are present. See Gildea v. Commissioner of Correction, 336 Mass. 48, 51, 142 N.E.2d 400 (erroneous computation of good behavior deduction); Brown v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782, 68 A.L.R.2d 708 (date of commencement of a 'from and after' sentence); Martin v. State Bd. of Parole, 350 Mass. 210, 212-214, 213 N.E.2d 925 (whether prisoner whose parole was revoked was entitled to a hearing on the revocation and to credit for time between revocation and reimprisonment). These cases determined questions related to sentences which did not rest in administrative discretion but involved only the proper application of legal principles to ascertained facts.'

We find no statute in Massachusetts analogous to our post-conviction habeas corpus statute.

Under our practice, before the 1963 post-conviction habeas corpus statute, mandamus was available to establish the commencement of a sentence for the purpose of determining eligibility for parole. Smith v. Lovell, supra, overruled on the merits in Green, supra.

The net result, in our view, is that the Court below had jurisdiction to entertain the complaint for a declaratory judgment and to enter the decree of January 6, 1969.

We then come to the interesting and important question of whether a trial judge

from whose decision an appeal has been taken has jurisdiction to recall and change his decision on the strength of a later decision in another case rendered by the Law Court before any steps have been taken on the appeal other than filing the required notice

Rule 60(b)(5), M.R.C.P. reads as follows:

'Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; * * *.'

In our view, the rule does not permit the recall and change of decision in the situation before us. The purpose of the rule and the extent of its application is stated in 2 F.McK. & W.Me.Civ.Pr.2d § 60.10 as follows:

'Grounds for Relief from Judgment-(5) Judgment Satisfied or No Longer Equitable

A motion under Rule 60(b)(5) should not take the place of an appeal not timely taken. Thus it is properly held that a final judgment will not be disturbed when another case involving the same question is decided the other way by the appellate court.'

'We are of the opinion that the judgment in this case was not 'based' upon a prior judgment which has been reversed or otherwise vacated within the meaning of subsection 5 of Rule 60(b).' Berryhill v. United States, 6 Cir., 1952, 199 F.2d 217, 219.

'Rule 60(b) was not intended to provide relief for error on the part of the court or to afford a substitute for appeal * * * Nor is a change in the judicial view of applicable law after a final judgment sufficient basis for vacating such judgment entered before announcement of the change.' Title v. United States, 9 Cir., 1959, 263 F.2d 28, 31.

See also Elgin Nat. Watch Co. v. Barrett, 5 Cir., 1954, 213 F.2d 776, 779; Scotten v. Littlefield, 235 U.S. 407, 35 S.Ct. 125, 59 L.Ed. 289.

To permit the alteration of a judgment on the strength of a later decision of the Law Court would impair the certainty and finality of judgments in the trial court. The Court on such a motion might be compelled to consider later decisions of the Law Court of doubtful applicability to the case before him.

We conclude, therefore, that the sitting Justice on entering judgment had no further jurisdiction on the facts hereof to alter his decision in response to a Rule 60(b)(5) motion. The road of appeal was open and had been taken by the respondent. It became then a matter for the Law Court on appeal and not the sitting Justice to correct any error on the merits appearing after entry of the...