Cole v. Langlois

• Decision Date: 13 January 1965
• Docket Number: No. 1662,1662
• Parties: Robert COLE v. Harold V. LANGLOIS, Warden. M.P.
• Court: Rhode Island Supreme Court

Page 216

206 A.2d 216

99 R.I. 138

Robert COLE v. Harold V. LANGLOIS, Warden.

M.P. No. 1662.

Supreme Court of Rhode Island.

Jan. 13, 1965.

Robert G Cole, pro se.

J. Joseph Nugent, Atty. Gen., Carmine A. Rao, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

This petition for habeas corpus was brought to obtain the discharge of the petitioner from the allegedly unlawful custody of the respondent warden. The petitioner has been in the respondent's custody since March 31, 1964, at which time a justice of the superior court, upon a plea of nolo contendere entered by the petitioner's counsel, imposed a sentence of five years.

Robert Cole, herein referred to as petitioner, had been indicted by a grand jury and charged with the commission of the crime of robbery. The indictment No. 32347 was returned after the apprehension of Cole on the charge of participation on October 8, 1963 in a robbery committed in a licensed place known as Jackson's Bar on Eddy street in Providence.

It appears from the record that petitioner, after an arraignment in the district court, was bound over to the December grand jury for Providence county, and in due course the instant indictment No. 32347 was returned. It appears further that on February 3, 1964 petitioner, who was not then represented by counsel, was arraigned thereon and pleaded not guilty thereto. Bail was set at $3,000 and, for want thereof, petitioner was committed to the adult correctional institution. On February 12, 1964 petitioner, now represented by counsel who was, it appears, procured for him by a professional bondsman, appeared in the superior court and, bail in the necessary amount being furnished, was discharged from custody. Thereafter, on February 28, petitioner appeared again before the superior court with counsel, who entered a plea of nolo contendere to the charge set out in the indictment. The record does not disclose that petitioner's plea of not guilty was formally withdrawn or otherwise referred to. The matter was continued to March 31 for sentence, at which time petitioner appeared before the superior court, when the sentence referred to above was imposed by a justice thereof.

Shortly after the imposition of sentence petitioner's wife engaged new counsel, who addressed a writ of error coram nobis to the superior court, which on May 1, 1964 was heard by the justice of that court who had imposed sentence. Upon an examination of the transcript of the evidence adduced at the hearing, it becomes clear that petitioner sought to establish that he changed his plea of not guilty to one of nolo contendere on the advice of counsel and without knowledge as to the nature of the latter plea and without being informed, either by his counsel or by the court, that this was, in effect, a withdrawal of his plea of not guilty and the entry of a plea of nolo contendere would in legal effect constitute a waiver of his right to a jury trial under the indictment.

The petitioner on February 28 stood before the superior court on a plea of not guilty pursuant to which he was entitled to certain constitutional rights including, inter alia, the right to a trial by an impartial jury. However, on that day by the act of his counsel entering a plea of nolo contendere, his status with regard to these constitutional rights was drastically altered and this because in this jurisdiction a plea of nolo contendere is, in substance, a plea of guilty.

It is true that this court has held that while such a plea may be followed by the imposition of sentence, it establishes guilt only for purposes that are pertinent to the case in which it is made. Doughty v. De Amoreel, 22 R.I. 158, 46 A. 838. But we have said: 'While a plea of nolo contendere may not establish defendant's guilt for all purposes and in other proceedings, it is clear that such a plea has the effect of a plea of guilty for the purposes of the particular proceedings on an indictment in which it is entered.' State v. McElroy, 71 R.I. 379, 392, 46 A.2d 397, 403.

We consider also significant the legislative enactment of G.L.1956, § 12-19-19, wherein it is provided that when an accused, arraigned before the superior court, 'shall plead guilty, or refuse to contend with the state, he may be at any time sentenced by the court * * *.' Obviously, this grant of statutory authority to impose sentence upon a plea of nolo contendere in like manner as on a plea of guilty means that such a plea, if entered by the defendant voluntarily and intelligently, waives his right to trial by jury. Concerning this aspect of the plea, we said in In re Lanni, 47 R.I. 158, 161, 131 A. 52, 53: 'By availing himself of the permission to enter a plea of nolo contendere this respondent waived his right to go to trial, and thereby waived whatever right he may have had to have his exceptions to rulings of the Superior Court considered here upon a bill of exceptions.' It is, then, our opinion that the act of petitioner's counsel in this case in pleading nolo contendere on February 28 must be regarded as having, for all practical purposes, constituted a plea of guilty under the indictment on which he was arraigned.

One of the benefits that accrues to an accused by reason of his right to be informed concerning the accusation made against him includes the right to be fully apprised of the nature of the plea of guilty and the effect of such a plea on his right to a jury trial. The burden of informing an accused concerning the nature of the plea is in many jurisdictions imposed on the court by rule or statute. But absent such an express imposition of this obligation on the court, such a plea will be vacated when it is shown to have been obtained from a defendant unaware and uninformed as to its nature and its effect as a waiver of his fundamental rights. The rule is broadly stated in Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009: 'Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. * * * But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence.'

Some recent decisions disclose a tendency to ascertain the validity of a plea of guilty on the basis of whether, in entering such a plea, the defendant validly waived the rights that he thereby forfeited. In Jones v. State, 221 Md. 141, at page 144, 156 A.2d 421, at page 422, decided in 1959, the court said: 'Ordinarily, a plea of guilty by a defendant represented by counsel and capable of participating in his own defense is accepted as a matter of course. * * * But in a capital case or other serious case, such as this, a trial court is required to be satisfied of the voluntary character of the plea that the defendant understands the nature and effect of a plea of guilty. The clear implication of this language is that where such a plea is voluntary in that it was not obtained by fraud or coercion and that it resulted from an intelligent decision on the part of a defendant to waive a trial by jury, the defendant is bound thereby.

In short, the real issue, in our opinion, raised in the instant case is whether the entry of the plea of nolo contendere constituted a valid waiver of defendant's right to a trial by jury. In Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, the United States Supreme Court said: 'The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461],--'an intentional relinquishment or abandonment of a known right or privilege'--furnishes the controlling standard.' It is incumbent then upon us to ascertain from the record whether the plea of nolo in the instant case represented a voluntary, intentional,...