Flint v. Howard
| Decision Date | 13 June 1972 |
| Docket Number | No. 1394-M,1394-M |
| Citation | 291 A.2d 625,110 R.I. 223 |
| Parties | Robert W. FLINT, Jr. v. Francis A. HOWARD, Warden. P. |
| Court | Rhode Island Supreme Court |
This is a petition for a writ of habeas corpus which we agreed to hear on oral arguments and briefs because it raises a question not previously considered by this court.
On March 13, 1964, Robert W. Flint, Jr., hereinafter called petitioner, pleaded guilty to three indictments charging him with robbery. He was sentenced to six years on each of two such indictments with the sentences to run concurrently. As to the third indictment, petitioner entered into as deferred sentence agreement as authorized by then G.L.1956, § 12-19-19. 1
Also in accordance with said section the period of probation provided for in the deferred sentence agreement would run for five years from the date of his release from the incarceration resulting from the six-year concurrent sentences. See Almeida v. Langlois, 97 R.I. 325, 197 A.2d 498 (1964) and Giroux v. Superior Court, 86 R.I. 48, 133 A.2d 636 (1957). Accordingly, when petitioner was paroled in connection with the concurrent six-year sentence in October of 1967, his period of probation had five years to run.
Therefore in July of 1969, petitioner and his brother were arrested and charged with robbery of the Elmwood Avenue branch of the Old Stone bank. They were jointly indicted and on November 12, 1969, petitioner was arraigned and pleaded not guilty. At that time, as well as on December 6, 1969 and January 26, 1970, he moved for a speedy trial on the 1969 indictment. 2
The record establishes that when petitioner was arraigned on November 12, 1969, to answer to the indictment charging him with robbery, an assistant attorney general, pointing out that petitioner was on a deferred sentence, moved that he be held without bail as a deferred sentence violator, pending receipt of a pre-sentence report and a hearing on the alleged violation.
The petitioner objected to being presented as a deferred sentence violator, claiming then, as he alleged in the instant petition, that he was entitled to be tried on the latest indictment to which he had just pleaded not guilty before the state could use that charge as a basis for presenting him as being in violation of the 1964 deferred sentence agreement.
The Superior Court justice, however, granted the state's motion and ordered petitioner held without bail pending a violation hearing which said justice assigned to December 10, 1969.
Seeking to vacate the December 10, 1969 assignment, petitioner, on December 1, 1969, filed a motion in this court for leave to file a writ of prohibition. We directed the Attorney General to show cause, if any he had, why the motion should not be granted. Thereafter, on consideration of petitioner's motion, his proposed petition for the writ, nied petitioner's motion on December 12, 1969. Flint v. State, 106 R.I. 823, 259 A.2d 416 (1969).
Meanwhile, petitioner appeared in the Superior Court on December 10, 1969, as scheduled. At that time, the Superior Court was advised of petitioner's motion pending in this court and the revocation hearing was reassigned to January 14, 1970.
On this latter date, petitioner, accompanied by court appointed counsel appeared as scheduled in the Superior Court. Present at that time also were a number of witnesses whom the state was prepared to present in connection with the Attorney General's presentment of petitioner as a deferred sentence violator.
The petitioner personally, as well as through his attorney, again protested the holding of a revocation hearing before trying petitioner on the 1969 indictment. 3
However, petitioner's motion to defer the revocation hearing until after trial on the 1969 indictment was again denied and the Attorney General called five witnesses in support of the state's allegation that petitioner was in violation of his 1964 deferred sentence agreement.
During the course of this hearing it was made known to the court by petitioner and his counsel that they were at odds as to how petitioner's interests could best be served. Counsel requested that he be permitted to withdraw from the case. This request was denied by the court but the hearing was continued for two days to January 16, 1970, and on that date again continued to January 20, 1970. On the latter date, following further discussions among the Superior Court justice, counsel for the petitioner, and petitioner, counsel was permitted to withdraw and new counsel was appointed. The hearing was then further continued and resumed on February 25, 1970. 4
When the witnesses were produced by the state at the commencement of the revocation hearing on January 14, as aforesaid, cross-examination was conducted both by petitioner and his then counsel. The former cross-examined each of the five witnesses at length, but counsel restricted his cross-examination to the police officers. Apparently, this was either the result of or a factor contributing to petitioner's dissatisfaction with his then counsel.
In any event, when the revocation hearing was resumed on February 25, 1970, at which petitioner was represented by newly appointed counsel, all five witnesses were recalled by the state for full examination by petitioner's counsel.
It will be helpful at this juncture to identify the witness in question and to summarize their testimony. The first such witness was a teller at the Elmwood Avenue branch of the Old Stone bank who related how on July 16, 1969, a man approached her cage and gave her a note. It stated that he had a gun and it directed her to give him all of the bills of large denomination in her drawer. She handed him $1,190 which the bank could identify by serial number.
On turning over the money, however, she touched off an alarm which rang at police headquarters. Moreover, she pointed to petitioner's brother who was in the court room as the man who made the demand and to whom she handed the bills.
The second witness was the assistant manager of the bank. He related how the teller told him of what had happened and pointed out the man as he was leaving the bank. The assistant manager followed the man out of the bank and up the street to where a car was waiting with a driver at the wheel. He could not identify the driver but he did get the make, color and registration of the automobile, information which he gave to the police within five minutes of the robbery.
The third witness was a Providence police sergeant who, while cruising in a police car, heard the radio broadcast giving a description of the car and its two occupants.
Within a few minutes of hearing this alarm, the sergeant spotted the car, caused it to stop and placed the two men under arrest. He identified these men as being petitioner and petitioner's brother.
The fourth witness was the sergeant's precinct commander. He testified as to hearing the sergeant's broadcast that he was in close pursuit on Broad Street in the vicinity of the bank. He further testified that following the sergeant's indicated area of pursuit, he came upon the scene of arrest. Getting out of his car, the commander approached the pursued vehicle and observed what appeared to be a gun sticking out under the front seat. On reaching in to take what turned out to be a plastic toy replica of an automatic, he discovered a paper bag with a large quantity of paper currency.
The final witness for the state was the Providence caption for detectives. He also went to the scene of the arrest but the significant testimony that he gave was to relate how the money taken from the car in question was identified, to the dollar, as that which had been taken from the bank.
Extensive cross-examination of these witnesses by petitioner and both of the attorneys who represented him did nothing to cast so much as a suggestion of doubt on a chain of circumstances which, if believed, placed petitioner in a precarious position. Notwithstanding this, petitioner elected to offer no exculpatory explanation. Rather, when extensive cross-examination of all witnesses produced by the state was completed, petitioner's counsel informed the court that petitioner, by his choice, would forego offering testimony in favor of arguing several motions, each of which, in effect, challenged the court's jurisdiction to sentence petitioner as being in violation of his deferred sentence agreement. 5
The Superior Court justice found no merit in any of petitioner's contentions regarding the challenge to the court's standing to conduct a violation hearing, and, relying on the state's uncontradicted evidence, sentenced petitioner to 12 years. 6
Thereafter, on April 13, 1971, some 14 months after having been violated as aforesaid, petitioner filed the instant petition with this court.
As noted early on, we ordered the writ to issue for hearing on oral arguments and briefs in order to consider an allegation of first impression with this court. 7
The specific question raised by petitioner's reviewable allegation is as follows:
Does constitutional due process require that a deferred sentence probationer indicted for an offense allegedly committed while on probation, must be tried on that indictment before the circumstances of his alleged involvement in the offense charged may be shown to support a finding that said probationer is in violation of his deferred sentence agreement?
In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the United States Supreme Court flatly rejected the proposition that revocation of probation proceedings are subject to constitutional safeguards. 8 The Court made it clear that probation is a species of grace whereby a convicted accused is permitted to remain...
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Flint v. Mullen
...EXHAUSTION OF STATE REMEDIES Petitioner has presented his first contention to the Supreme Court of Rhode Island in Flint v. Howard, 291 A.2d 625 (R.I.1972), thus exhausting his state court remedies pursuant to 28 U.S.C. § 2254. However, the State contends that petitioner did not challenge t......
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Com. v. Kates
...to conduct a revocation hearing prior to trial and have upheld the procedure. For example, in the Phode Island case of Flint v. Howard, R.I., 291 A.2d 625 (1972); it was held that the petitioner was not entitled to be tried on a robbery indictment before the circumstances which led to that ......
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Kean, In re
...right to testify at deferred-sentence-violation hearing prior to trial and privilege against self-incrimination at trial); Flint v. Howard, 110 R.I. 223, 291 A.2d 625, cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 (1972) (same issue as Flint v. Mullen, supra Thus, Kean should ha......
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State v. Bettencourt
...463, 194 A.2d 674, 675 (1963). Be that as it may, they persisted in their appeal, and they now ask us to reconsider Flint v. Howard, 110 R.I. 223, 291 A.2d 625 (1972). In that case the revocation was based upon the commission of a new crime for which the petitioner was later tried and acqui......