Charest v. Howard

• Decision Date: 06 January 1972
• Docket Number: No. 1212-M,1212-M
• Citation: 285 A.2d 381,109 R.I. 360
• Parties: Joseph A. CHAREST, Jr. v. Francis A. HOWARD, Warden. P.
• Court: Rhode Island Supreme Court

Page 381

285 A.2d 381

109 R.I. 360

Joseph A. CHAREST, Jr. v. Francis A. HOWARD, Warden.

No. 1212-M.P.

Supreme Court of Rhode Island.

Jan. 6, 1972.

James Cardono, Public Defender, John P. Toscano, Jr., Asst. Public Defender, for petitioner

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for respondent.

OPINION

POWERS, Justice.

This petition for a writ of habeas corpus is predicated on the petitioner's contention that his incarceration in the Adult Correctional Institutions is unlawful for the reason that the order of his commitment is violative of due process.

It appears from the averment of his sworn petition that on October 17, 1969, petitioner pleaded nolo to an indictment charging him with receiving stolen goods and was sentenced to a term of five years. The execution of said sentence was suspended, however, and petitioner was placed on probation for a period of five years.

If further appears that on December 21, 1969, petitioner was arrested by the North Kingstown police but was not charged with any crime. On January 22, 1970, however, he was charged by the Jamestown police with 12 counts of breaking and entering. The complaint and warrant issued out of the District Court, Second Division, Newport, Rhode Island. A capias issued out of the Superior Court for Washington County and on January 27, 1970, petitioner was arraigned in said Superior Court as a suspended sentence violator. He was held without bail and the case was continued to February 5, 1970. On this latter date, the case was further continued to March 5, 1970, and petitioner was released on personal recognizance. On March 5, the case was further continued to March 30, 1970. These continuances, petitioner avers, were made to await disposition of the charges in the Newport District Court.

If further appears that on Said March 30, 1970, the charges pending against petitioner in the Newport District Court were dismissed. The same day, petitioner appeared in the Superior Court for Washington County and was adjudged to be in violation of the suspended sentence. A mittimus issued and petitioner was turned over to respondent to commence serving his five-year sentence.

The petition then avers that the revocation of his suspended sentence was without a hearing of any kind, and for this reason petitioner's restraint by respondent is unlawful in that the revocation of his suspended sentence constitutes a denial of due process.

In accordance with our practice, petitioner accompanied his petition with a memorandum of law. It cites O'Neill v. Sharkey, 107 R.I. 524, 268 A.2d 720 (1970); Walker v. Langlois, 104 R.I. 274, 243 A.2d 733 (1968) and Flint v. Sharkey, 107 R.I. 530, 268 A.2d 714 (1970), reargument denied October 20, 1970, as authorities for the proposition that his revocation without a hearing violates due process. ¹

The petitioner did not accompany his petition with a transcript of the March 30, 1970 revocation proceedings. This failure would ordinarily be fatal to a consideration of his petition since it was his burden to establish that the revocation proceedings fell short of the meaningful hearing to which he was entitled. LaRoche v. Langlois, 102 R.I. 582, 232 A.2d 365 (1967).

Nevertheless, out of an abundance of caution for petitioner's rights, and because we concluded that the petition should be further explored, ² we ordered respondent to show cause why the writ should not issue. Charest v. Howard, R.I., 271 A.2d 471 (1970).

In his sworn answer to the show cause order, respondent admitted that petitioner was in his custody but denied that such custody was unlawful. Rather, he alleged that petitioner's suspended sentence was revoked after a hearing. In the memorandum of law accompanying his answer, respondent stressed our holding in O'Neill v. Sharkey, supra , that the standards therein adopted would have no retrospective application and that as to revocation hearings held prior to O'Neill, our holding in Walker v. Langlois, supra, would be controlling.

Continuing with his answer, respondent stated, that subsequent to the March 30, 1970 revocation, petitioner filed a petition for habeas corpus in the Superior Court. This petition, he further advised us, except for the allegation that the March 30, 1970 revocation was without a hearing, was identical with the instant petition.

The respondent's answer further alleged that the petition addressed to the Superior Court had been heard on July 8, 1970, and denied.

The petitioner, replying to respondent's answer again claimed that the March 30, 1970 revocation proceedings amounted to a hearing insufficient in law to justify the revocation.

On this state of the pleadings and having in mind the heretofore undecided question of whether a distinction should be made as to what constitutes a valid revocation hearing in suspended sentences vis-a -vis deferred sentences, we granted the petition and ordered the writ to issue. Charest v. Howard, R.I., 273 A.2d 325 (1971). ³

The writ issued on February 11, 1971, and some two months later, namely April 21, petitioner filed with this court a certified copy of the transcript of the March 30, 1970 revocation proceedings, together with a certified copy of the July 8, 1970 hearing on his habeas corpus petition to the Superior Court.

Before turning to a consideration of the matters therein contained, we deem it timely to question the appropriateness of employing the writ of habeas corpus as a vehicle for review in this court of revocation proceedings in the Superior Court. We do so fully cognizant of the fact that we have on occasions heretofore condoned such practice. Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964); Walker v. Langlois, supra, O'Neill v. Sharkey, supra, are cases in point. However, had we denied petitioners in those cases a review through recourse to a prerogative writ, review would have been foreclosed, since the time for prosecuting bills of exceptions had passed. Such is the situation in the case at bar.

Rule 21(a) of the rules of this court specifically provides:

'Decisions, rulings and orders of the superior court upon any criminal matter subsequent to judgment may be excepted to and may be made the subject of a bill of exceptions in the same manner, as near as may be, as decisions, rulings and orders prior to judgment.'

We now think it readily apparent that the interest of one whose probation has been revoked in the Superior or Family Courts, where (a) records of the proceedings are kept, as well as more orderly procedure in this court, will be better served if the allegedly aggrieved probationer prosecutes a bill of exceptions from the decision of the revoking justice rather than invoking habeas corpus, a writ of error, or certiorari.

Consequently, we hold that as to all such hearings, and indeed any post-conviction proceedings in which the defendant claims there is error, held after the filing of this opinion, the exclusive vehicle for review thereof in this court, except for circumstances so unique or peculiar as to justify the exercise of our discretion, will be by way of a bill of exceptions.

This brings us to a consideration of the merits of petitioner's contentions. These are that in the revocation proceedings of March 30, 1970, petitioner did not receive the hearing to which he was entitled and that, even if he had, the decision of the revoking justice is arbitrary and capricious.

As heretofore noted the minimum standards protection decreed by this court in O'Neill v. Sharkey, supra, did not govern the March 30, 1970 proceedings. Rather, it was our holding in Harris v. Langlois, supra, as re-enunciated in Walker v. Langlois, supra, that controlled. It is the essence of these cases that an alleged violator of probation is entitled to no more than that which is provided by statute. ⁴

Additionally, we pointed out that the evidence upon which probation may be revoked may consist of hearsay. Nor is it required that such evidence establish violation beyond a reasonable doubt.

It is sufficient if this court in reviewing the decision of the revoking justice cannot say that his decision was such an abuse of discretion as to be arbitrary or capricious. Walker v. Langlois, supra.

Having in mind then the protection to which petitioner was entitled, we look to the transcript of the March 30, 1970 revocation proceedings. It discloses that petitioner appeared with counsel. The Superior Court justice made it abundantly clear that his consideration of whether petitioner was in violation of the terms of his probation was based on the contents of a pre-sentence report, prepared after the Superior Court capias had issued and on an inquiry made by said justice of the clerk of the District Court, Second Division, in which the breaking and entering charges had been brought and dismissed.

Counsel for petitioner was permitted to argue at length, and petitioner was personally given every opportunity to have his say. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). ⁵

We think it clear then that the March 30, 1970 revocation proceedings afforded to petitioner that degree of procedural due process to which he was entitled, and his contention that he was denied a valid hearing is without merit.

This brings us to a consideration of his contention that, even assuming that the hearing was correct in manner and form, the decision of the Superior Court justice must be faulted as being arbitrary and capricious.

The pre-sentence report upon which the Superior Court justice reached his decision discloses the following. At approximately 1 a.m. on December 21, 1969, the North Kingstown police officers observed a motor vehicle occupied by two males. They stopped the car for a routine check and asked petitioner, who was the operator, for his license and registration. The petitioner replied that he had never had a license and the officer directed that the car be driven to the North Kingstown...