Eaton v. State
| Decision Date | 03 April 1973 |
| Citation | 302 A.2d 588 |
| Parties | Ronald V. EATON v. STATE of Maine. |
| Court | Maine Supreme Court |
Archer & Downing, by Wesley C. Archer, David R. Downing, Brewer, for plaintiff.
John W. Benoit, Jr., Deputy Atty. Gen., Augusta, for defendant.
Before DUFRESNE, C. J., and WEBBER, WERNICK, and ARCHIBALD, JJ.
This is an appeal by Ronald V. Eaton from the denial of his request for a writ of habeas corpus seeking post-conviction relief pursuant to 14 M.R.S.A. § 5508.
It is necessary to summarize the facts in order to bring the issues into proper focus.
On Friday, April 10, 1970, Eaton, a parolee under a sentence to the Maine State Prison, was arrested without a warrant, charged with being found intoxicated on a public street in Belfast, and incarcerated in the Waldo County Jail. A complaint in proper form was issued the following Monday, April 13.
On Saturday, April 11, Byron R. Heath, the Probation-Parole Officer, issued a formal signed request to the Sheriff of Waldo County to hold Eaton in custody as a parole violator. The following day (Sunday) Eaton escaped from the Waldo County Jail, but shortly thereafter he was apprehended and returned.
On Monday, April 13, a warrant was issued against Eaton for a violation of 17 M.R.S.A. § 2103 (), and the next day a two-count complaint was issued charging him with a violation of 17 M.R.S.A. § 1405 (escape from jail). On April 14, 1970, the record indicates that Eaton ws before the District Court on the three complaints then outstanding, namely, for intoxication, escape, and breaking, entering and larceny. The District Court Judge took no action on these matters except as to the complaint for intoxication, to which Eaton pleaded guilty. However, that case was continued for sentencing, and the hearings on the two pending felony complaints were adjourned, all until April 17, 1970.
On April 16, 1970, Eaton, being then represented by Court appointed Counsel, appeared before a Justice of the Superior Court and filed a petition to waive indictment and proceed by information on the charge of escape from jail. M.R.Crim.P Rule 7(b). This petition was approved by the Justice presiding and the County Attorney immediately filed a two-count information 1 to which Eaton entered a guilty plea. The plea was accepted (M.R.Crim.P., Rule 11), and he was sentenced to serve not less than two years nor more than five years in the Maine State Prison.
The appellant asserts several gounds to support his claim for relief, none of which are meritorious. In arguing his position he takes a two-pronged stance, namely:
(A) Neither court in the information charging escape is valid and, therefore, the Superior Court was without jurisdiction to act thereon; and alternatively,
(B) the appellant's plea of guilty was ineffective to support the ensuing judgment and sentence.
Initially, it is the appellant's contention that Count 1 contains no valid allegation of lawful detention. 17 M.R.S.A. § 2001 (Intoxication), 2 he argues, allows a peace officer to consummate an arrest without a warrant only when an intoxicated person is found who conjoins his state of public intoxication with a disturbance of the peace. As stated in appellant's brief, 'it would appear that the authority to arrest ro to take into custody, as the statute is worded, makes the statute unconstitutional as containing within it an unreconcilable conflicts (sic).'
We see no merit in this position. It is clear to us that the language of the statute allowing the arrest of '(a)ny such intoxicated person' refers not only to those who are found 'disturbing the peace' but also to those found intoxicated in 'any street, highway or other public place.' Certainly, the Legislature could not have intended that a police officer without a warrant for arrest would be powerless to protect society from the 'evil of drunkenness in public' (see State v. Lawrence, 146 Me. 360, 362, 82 A.2d 90, 92 (1951)) or, in fact, to protect the unfortunate victim of alcoholic overindulgence from his own infirmity.
In 1971 the Legislature recognized the pre-existing statutory power to arrest under either situation by adopting an amendment to Section 2001 which allowed an accused to be released, after being taken into custody, if it appeared he was 'not a danger to himself (typical of one simply found intoxicated in a street) or others (typical of one found disturbing the public peace while intoxicated).' Public Laws of 1971, ch. 460. 3 Since Section 2001 authorizes an arrest under either circumstance, Count 1 does allege a lawful detention.
With reference to Count 2, appellant again asserts a failure to allege lawful detention because the authority of a probation-parole officer to arrest a parolee is found in 34 M.R.S.A. § 1675 4 and not in 34 M.R.S.A. § 1632, which deals only with individuals in custody under a court order placing them in probation. However, even though the statutory reference was incorrect, it had no bearing on the substantive offense charged since by deleting it completely the information would have met the pleading requirements of the criminal rules. The incorrect statutory reference was surplusage. State v. Mihill, 299 A.2d 557 (Me.1973).
Additionally, M.R.Crim.P., Rule 7 (c) contains this language:
'Error in the citation of a statute or its omission shall not be grounds for the dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.'
The record indicates that the Justice presiding at the time of the arraignment noted this error and called it to the attention of the appellant and his counsel. Following a conference with the appellant, his counsel made the statement: 'He has no objection to proceeding as it is, your Honor.' It is clear that the erroneous statutory citation 'did not mislead the defendant to his prejudice.' See State v. Bryce, 243 A.2d 726, 732 (Me.1968).
Finally, the jurisdiction of the Superior Court is challenged because the appellant had not been given a preliminary hearing in the District Court to determine '(whether) there is probable cause to believe that an offense has been committed and that the defendant has committed it.' M.R.Crim.P., Rule 5(c).
We understand the appellant's position to be that the Superior Court never can obtain original jurisdiction of felony proceedings by waiver of indictment unless a preliminary or 'bind over' proceeding has been had in the District Court.
It is undoubtedly true that between December 1, 1965, and September 23, 1971, 5 many criminal actions were originated in the Superior Court by the waiver of indictment process under Rule 7(b) without a preliminary hearing in the District Court. This is the first occasion we have had to consider the validity of such a proceeding.
On the date of the information here in issue, 15 M.R.S.A. § 701 provided:
'No person shall be held to answer in any court for an alleged offense, unless on an indictment found by a grand jury, except for contempt of court and in the following cases:
1. Information. When prosecutions by information are expressly authorized by statute 2. . . . (excluding misdemeanors, juvenile offenses and courts martial).'
This statute has been a part of Maine law governing criminal process since 1840. R.S.1840, ch. 169. The identical language of Subsection 1 was retained from 1840 until the statute was amended in 1970 (P.L.1971, ch. 544, § 49) by striking out the word 'statute' and substituting therefor 'rule of court.'
In 1955 the Legislature enacted 15 M.R.S.A. § 811 (P.L.1955, ch. 187), delineating the method by which an accused felon could waive indictment by a grand jury and proceed in the Superior Court on an information filed by a prosecutor. Section 811 premised the right to so proceed on the accused being 'bound over to await the action(s) of a grand jury.' However, this section was repealed, effective December 1, 1965, by P.L.1965, ch. 356, § 32 and, simultaneously therewith the Maine Rules of Criminal Procedure became operative in which Rule 7(b) spelled out the procedures necessary to waive indictment. Rule 7(b) does not require, as did Section 811, that there be a 'bind over' order from a District Court, simply stating, '(a)ny offense except one punishable by life imprisonment, may be prosecuted by information . . ..' 6
The issue energing from this history becomes: Did the 1965 repeal of 15 M.R.S.A. § 811 and the retention (until 1971) of Subsection 1 of 15 M.R.S.A. § 701 deprive the Superior Court of jurisdiction over the 1970 information before us because no statute existed authorizing proceedings by information? We answer in the negative for the basic reason that the 1965 promulgation of the Maine Rules of Criminal Procedure was effective as an amendment of Subsection 1, removing any conflict between it and Rule 7(b)
4 M.R.S.A. § grants the Supreme Judicial Court 'the power and authority to prescribe, repeal, add to, amend or modify rules of (criminal) pleading, practice and procedure with respect to any and all (criminal) proceedings through final judgment,' and this enabling statute further provides that '(a) fter the effective date of such rules as promulgated . . . all laws in conflict therewith shall be of no further force or effect.' (Emphasis supplied.)
Conceding that 4 M.R.S.A. § 9 does not give the Supreme Judicial Court authority to exercise its rule making power to repeal, or amend, the substantive law (20 Ma.Jur.2d, Courts § 84), there can be no doubt of its power to override any procedural statutes that might be in conflict with the rules when promulgated.
An indictment or information is obviously a criminal pleadig and the process by which the pleading comes into existence is clearly a criminal procedure. See In Re Wright, 3 Wyo. 478, 27 P. 565 (1891). Since Subsection 1 did not prevent a grand jury from returning an indictment and since...
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