Bishop v. Langlois

• Decision Date: 16 July 1969
• Docket Number: No. 554-M,554-M
• Citation: 256 A.2d 20,106 R.I. 56
• Parties: Alfred J. BISHOP v. Harold V. LANGLOIS, Warden. P.
• Court: Rhode Island Supreme Court

Page 20

256 A.2d 20

106 R.I. 56

Alfred J. BISHOP v. Harold V. LANGLOIS, Warden.

No. 554-M. P.

Supreme Court of Rhode Island.

July 16, 1969.

Reargument Denied July 31, 1969.

John A. Varone, Providence, for petitioner

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for respondent.

OPINION

ROBERTS, Chief Justice.

This petition for habeas corpus was brought to obtain the descharge of the petitioner from the allegedly unlawful custody of the respondent warden. The petitioner has been in the respondent's custody since March 11, 1968, at which time a justice of the superior court sentenced the petitioner to a term of five years for violation of a deferred sentence.

Alfred J. Bishop, hereinafter referred to as petitioner, on June 13, 1963, pleaded nolo contendere to indictment No. 2106, charging him with breaking and entering, and on June 28, 1963, was sentenced to a term of one year at the adult correctional institutions. The record discloses that petitioner served this sentence. Subsequently, on October 7, 1965, petitioner pleaded nolo contendere to indictment No. 2457, charging him with the possession of a firearm after conviction of a crime of violence, and on October 21, 1965, sentence was deferred on that plea. Indictment No. 2457 charged petitioner with a violation of G.L.1956, § 11-47-5, as amended, ¹ which makes it an offense for anyone who has been convicted of a crime of violence to be in possession of a firearm thereafter.

On December 4, 1967, petitioner was again indicted for breaking and entering, the indictment No. 2888 still pending in the superior court. On March 11, 1968, he was found to have violated the terms of the deferred sentence and was sentenced to the term of five years he is now serving. On September 18, 1968, a hearing was held on petitioner's petition for a writ of error coram nobis, in which he sought to establish that in 1963, when he pleaded nolo to indictment No. 2106 and was sentenced to one year, he had not been informed by either the court or his counsel of the nature and the consequences of a plea of nolo. At that time counsel who had represented him in 1963 stated by way of deposition that he had not informed petitioner of the nature and consequences of the plea of nolo. The superior court found that petitioner did not in 1963, with respect to indictment No. 2106, make a knowing and understandingly clear waiver of his right to a jury trial. However, for other reasons, the court denied and dismissed the petition.

The petitioner is contending, as we understand him, that it was prejudicial error on the part of the court to have accepted in 1963 his plea of nolo contendere without first ascertaining that he was fully aware that such a plea was equivalent to a plea of guilty and that by the entry thereof petitioner was deprived of a number of constitutional rights, including that of trial by jury. He argues that, in the circumstances, the 1963 conviction pursuant to indictment No. 2106 was null and void and should be set aside, and further that he should be released from custody resulting from his 1965 conviction pursuant to indictment No. 2457. This argument rests, we assume, on the theory that if the conviction of 1963 were null and void, he could not have been convicted under § 11-47-5 for the possession of a firearm after conviction for a crime of violence.

In this argument petitioner relies upon the principle of law referred to by this court in Lonardo v. Langlois, 98 R.I. 493, 205 A.2d 19, and adopted by us some months later in Cole v. Langlois, 99 R.I. 138, 206 A.2d 216. In Cole we held that an accused is entitled as of right to be fully informed of the nature of the accusation against him and, therefore, to be fully apprised of the nature of the plea of guilty and the effect of such a plea on his constitutional rights. In many jurisdictions the obligation to thus inform an accused is imposed upon the court by rule or by statute. However, even where such an obligation is not imposed expressly upon the court, such a plea will be vacated when it is shown to have been obtained from a defendant who was unaward and uninformed as to its nature and as to its effect as a waiver of his constitutional rights. See Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009.

Cole, however, establishes as the ruel in this state that the obligation of the court in these circumstances is '* * * to ascertain whether petitioner knew of the effect of the plea and to inform him with respect thereto if he did not.' 99 R.I. at 145, 206 A.2d at 220. We further held that failure on the part of the court might be held to be harmless error where the accused, through the advice of counsel, had been sufficiently informed as to the plea and its consequences to establish that the waiver of his pertinent constitutional rights was intelligent and voluntary.

In this court petitioner is seeking to have the decision of the superior court dismissing his petition for writ of error coram nobis set aside and the conviction of 1963 declared null and void. This he rests upon the fact that the record does not disclose that the court either ascertained the state of his knowledge concerning the nature of the plea or that it had informed him thereof, and that the deposition of his former attorney, stating that he had faled to inform petitioner of the nature and results of a plea of nolo contendere, warrants a vacation of the entry of that plea.

In this case the question is raised for the first time whether the rule stated in Cole should be given a retrospective application. This contention confronts us with the question whether this court may, in consistence with the ends of justice, give the rule stated in Cole a prospective application only, that is, to pleas that were entered after the date of that decision, January 13, 1965. It is true that in the decision in Cole we applied the principle of law stated therein to a plea of nolo contendere entered on February 28, 1964, or almost a year prior to the filing of that decision.

We turn to consider then in the first instance whether inequities would result from the granting of such relief to Cole, the first person to raise the question, but denying it to others whose pleas, like Cole's, were entered before the date of that decision. It has been pointed out that it is proper to give the first applicant for such relief the benefit of the revised rule, and this is consistent with the oblgation of the courts to resolve issues only in concrete controversies and to provide counsel with an incentive to advance contentions requiring a change in the law. Castro v. United States, 9 Cir., 396 F.2d 345, 349; Stovall v. Denno, 388 U.S. 293, 300, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1205, 1206. We concur in the view thus taken by the United States courts as stated in the above-cited opinions. The fact that the first applicant to raise the particular issue receives benefits therefrom does not have the effect of precluding the court from giving the rule so stated only prospective operation. The apparent inequities arising out of the fixing of such a cutoff date are outbalanced by the factor of public reliance on an effective administration of justice, which argues for a prospective application only. See Stovall v. Denno, supra.

Whether a particular rule of criminal procedure should be given retrospective application raises a vexing question, the answer to which must depend upon a consideration of a number of factors. The interests of the accused must be given full and adequate consideration, but at the same time those interests must be weighed agaisnt the public's interest in the effective enforcement of the criminal law. Obviously, where the mandate of the public interest is superior to the interests of the accused, restrospective application cannot be justified.

In Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601, 608, the United States Supreme Court siad: 'Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weight the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' There is nothing in our constitution which either mandates or precludes the application of a rule of restrospectivity and, therefore, as noted in Linkletter, we must look to the merits and the demerits of the proposition that has been put before us. We must determine whether the interests of the accused so counterbalance the interests of the public in the enforcement of the criminal law that retrospective application of the particular ruel of criminal procedure is warranted.

An examination of the cases discloses that the courts have repeatedly attempted to promulgate standards or criteria upon which to base these considerations. In Stovall v. Denno, supra, the Supreme Court of the United States said: 'The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' 388 U.S. at 297, 87 S.Ct. at 1970, 18 L.Ed.2d at 1203.

In State v. Gannites, 101 R.I. 216, 221 A.2d 620, we concluded that the rule laid down in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was to be given prospective application only. In Gannites we noted that the United States Supreme Court refused to give retrospective application to the rule thus laid down in either Escobedo or Miranda. There we said that, as regards the United States Supreme Court, 'Influenced obviously by the considerations but recently expressed in ...