Dow v. State

Citation275 A.2d 815
PartiesRaymond E. DOW v. STATE of Maine and Allan L. Robbins.
Decision Date06 April 1971
CourtSupreme Judicial Court of Maine (US)

Mitchell & Ballou by John W. Ballou, Bangor, for plaintiff.

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


DUFRESNE, Chief Justice.

Petitioner, Raymond E. Dow, instituted in the Superior Court under 14 M.R.S.A. § 5502 a petition for the writ of habeas corpus seeking his release from Maine State Prison. The petition as amended and the writ were denied by a single Justice from whose decision petitioner has appealed to this Court. We find no error.

Represented by counsel of his own choice, petitioner was convicted on his plea of guilty to an indictment charging him with the crime of breaking, entering and larceny in the nighttime, and on February 9, 1967 was sentenced to a term in Maine State Prison of not less than 2 years and not more than 5 years; execution of the sentence, however, was suspended for the period of 2 years and Dow was placed on probation and committed to the custody and control of the State Probation and Parole Board. On December 11, 1967 the Board charged the petitioner with violation of the conditions of his probation reporting to the Superior Court 1) that Dow on October 12, 1967 had been convicted in the Hancock County Superior Court of concealing merchandise while in a store and 2) that he had been consorting with a named female, a person other than his wife. After hearing at which the petitioner was represented by retained counsel, revocation of probation ensued and Dow was ordered committed in execution of his sentence.

Petitioner in his points on appeal raises the legal sufficiency of the indictment to which he pleaded guilty and which reads as follows:

'On or about the seventeenth day of November, 1966, in the County of Penobscot, State of Maine, RAYMOND E. DOW in the night time of said day, did break and enter a certain building in which valuable things were taken and then and there kept, to wit, the warehouse of Brewer Junk Co., a corporation duly organized and existing by law and having an established place of business at 35 Spring Street, in Brewer, said County of Penobscot, State of Maine, and therein did, with intent to permanently deprive said Brewer Junk Co. of its property, steal, take and carry away, Three Hundred (300) pounds of junk copper wire, eavh pound of the value of fifty cents, all of the aggregate value of One Hundred and Fifty ($150.00) Dollars the property of said Brewer Junk Co.'

The indictment follows Form 11 (Maine Practice, Glassman, at page 454) which the Supreme Judicial Court has approved in Rule 58 M.R.Crim.P. It sufficiently charges the crime of breaking, entering and larceny in the nighttime under 17 M.R.S.A. § 2103 and petitioner's assertion to the contrary is frivolous.

Petitioner in tis statement of points on appeal further contends, and he argued the same orally and in his brief, that he was denied his constitutional rights of effective assistance of counsel under Art. I, § 6 of the Constitution of Maine and the Sixth Amendment to the Constitution of the United States obligatory on the States through the Fourteenth Amendment. Specifically he claims inadequacy of counsel representation amounting to constitutional deprivation of right, in that his attorney at the trial level did not advise him of his right to appeal the judgment of conviction entered upon his plea of guilty, nor did his attorney advise him of his right of appeal from the court order revoking his probation.

Focusing our attention upon the first stated reason underlying petitioner's claim of constitutional deprivation of counsel representation because trial counsel failed to advise him of his right to appeal from the conviction ensuing upon his plea of guilty, we must decide preliminarily whether Maine law authorizes appellate review of a conviction based upon a plea of guilty. If no such review is legally possible, then there is no duty upon counsel, retained or appointed, to advise an accused respecting such a right and no resultant liability to a charge of incompetency for failure to do so.

We are mindful of this Court's statement in State v. Mower, 1969, Me., 254 A.2d 604, that a trial court is not required to usurp the responsibilities of employed counsel by advising a defendant concerning his right of appeal and that a defendant who is represented by attorney of his own choosing cannot successfully assert a denial of due process because after trial he is not given the additional protection prescribed by Rule 37(c), M.R.Crim.P. which requires the court specifically to advise a defendant with court-appointed counsel of his right of appeal. In the instant case, there was no trial, counsel was not court-appointed and Rule 37(c) was not applicable.

In the post-conviction proceedings the petitioner testified without contradiction that he had no discussion with his trial counsel about the possibility of appealing his conviction. He did say that prior to entering his plea of guilty he advised his attorney that, since he was apprehended on the premises, he was obviously guilty, adding: 'I just figured I was guilty and that was maybe what plea we'd have to enter.' On cross-examination he further stated that 'we decided to throw ourselves on the mercy of the Court.' From this evidence the single Justice below found, and properly so, that petitioner's plea of guilty was 'Knowingly, understandingly and voluntarily made,' a fending which is not disputed in these proceedings on appeal.

Thus, petitioner concedes that his plea of guilty was voluntarily and intelligently entered with advice of counsel, but rests his case upon the bald proposition that he was entitled in any event to be apprised of his right to appeal his conviction notwithstanding his plea of guilty and that his lawyer's failure to do so amounted to counsel incompetency of constitutional dimension sufficient to support habeas corpus relief from present imprisonment.

As a general rule a judgment of conviction entered on a plea of guilty or nolo contendere is not ordinarily reviewable on appeal if the plea was made freely and voluntarily with full understanding of its nature and effect. The rationale underlying the rule rests on the fact that a voluntary and intelligent plea of guilty by an accused is a self-supplied conviction precluding trial of the issue of guilt or innocence and authorizing in and of itself the imposition of the punishment fixed by law. It is an efficient waiver of all defenses other than those jurisdictional in nature. As stated by the Virginia Court in Peyton v. King, 1969, 210 Va. 194, 169 S.E.2d 569:

'Where a conviction is rendered upon such a plea and the punishment fixed by law is in fact imposed in a proceeding free of jurisdictional defect, there is nothing to appeal. To take any other view would give recognition to an empty right and permit frivolous appeals for the mere sake of delay.'

Such a judgment entered on the plea of guilty is not appealable on the merits. Stephens v. Toomey, s959, 51 Cal.2d 864, 338 P.2d 182; Cohen v. State, 1964, 235 Md. 62, 200 A.2d 368.

But by the great weight of authority an appeal will lie from a judgment of conviction entered upon a plea of guilty or nolo contendere for fundamental constitutional deficiencies nullifying the plea, including a claim of denial of counsel representation or that a waiver of constitutional rights was not made knowingly and understandingly. See, People v. Navarro, 1966, 243 Cal.App.2d 755, 52 Cal.Rptr. 686; Duvall v. State, 1968, 5 Md.App. 484, 248 A.2d 401; Commonwealth v. Sapp, 1968, 428 Pa. 377, 238 A.2d 208; State v. Saylors, 1966, 70 Wash.2d 7, 422 P.2d 477. Non-compliance with the standards of our Rule 11, M.R.Crim.P., as mandated by McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, has been viewed by the Iowa Court as such fundamental constitutional irregularity subject to direct appellate review, notwithstanding the judgment of conviction followed a guilty plea. State v. Sisco, 1969, Iowa, 169 N.W.2d 542.

In some states a right of appeal exists from a judgment of conviction rendered on a plea of guilty as a matter of right. See, People v. Garrow, 1968, 30 A.D.2d 618, 290 N.Y.S.2d 694; Ramey v. State, 1967, Fla.App., 199 So.2d 104.

Appellate review in Maine is strictly statutory as the common law provided no appeal. State v. Bey, 1965, 161 Me. 23, 206 A.2d 413; Sears, roebuck & Co. v. Protland et al., 1949, 144 Me. 250, 68 A.2d 12. The right of review by the Law Court is not a constitutional one and must, as a matter of jurisdictional concern, rest upon enabling legislation empowering the Court to act. Sears, Roebuck & Co. v. Portland et al., supra.

At the time of Dow's conviction, the pertinent statute on appeal was 15 M.R.S.A. § 2115, which reads as follows:

'In any criminal case in the Superior Court any defendant aggrieved by a judgment, ruling or order may appeal therefrom to the law court within 10 days or such further time as may be granted by the court pursuant to a rule of court.'

This statute became effective on December 1, 1965 as part and parcel of the change-over to the new rules of criminal procedure which took effect simultaneously. Rule 37(a), M.R.Crim.P. reads in pertinent part as follows:

'Whenever a judgment of the Superior Court is by law reviewable by the Law Court, such review shall be by appeal in accordance with these rules. Review by exception, motion, writ of error, or otherwise than by appeal is abolished.'

As pointed out by Professor Glassman in his book on Maine Practice, Rules of Criminal Procedure, § 37.1 at page 311: 'A single form of appellate review is provided, namely appeal. All other methods of appellate review are specifically abolished by Rule 37(a).'

Prior to the 1965 amendment of 15 M.R.S.A....

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