Green v. State
| Decision Date | 30 October 1968 |
| Citation | 247 A.2d 117 |
| Parties | Ansel GREEN v. STATE of Maine et al. |
| Court | Maine Supreme Court |
Alexander MacNichol, Portland, for plaintiff.
Garth K. Chandler, Asst. Atty. Gen., Augusta, for defendants.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.
This opinion is supplemental to our opinion rendered August 20, 1968, Me., 245 A.2d 147. There is no need, however, to reiterate the fact situation which we thoroughly outlined in our former decision. By subsequent motion for modification or rehearing, petitioner requests from this Court a formal and express ruling on his alleged due-process grievance properly assigned on appeal and fully advanced to us in brief and at oral argument.
Petitioner contended that the voidance by this Court of his previous erroneous sentence had established as a fact that he had served time in State Prison for some 13 years upon an illegal sentence and that to let his current sentence stand without a remand to the sentencing judge for his consideration of that circumstance on resentence was a violation of the due process clause of our State and Federal Constitutions. If a reading of our prior decision has led to the conclusion that counsel had waived petitioner's reference due-process argument, we hasten to say that we entertained no such fact and did not wish to convey any such inference.
Having in mind that waivers of alleged constitutional grievances at the State level may bar federal relief under the doctrine of prior exhaustion of state remedies, we do state for the record that petitioner's counsel did not waive petitioner's claim that due process required remanding for resentence.
Although we did not expressly dispose of the argument, we inferentially denied relief thereon when we proceeded to establish the legal commencement date of petitioner's present sentence. Any remand for resentence would have rendered moot and premature petitioner's claim that he was illegally imprisoned under his second sentence, when, after the setting aside of the previous conviction, the second sentence was not moved forward and made to run as of the first day of his incarceration thereunder.
In re-affirming our previous decision, we now state the reasons for denying further relief to the petitioner.
The issue is, whether due process requires that a prisoner, who has served time on an illegal sentence imposed by a court of this State for another offense, which prior sentence has been set aside for error subsequently to the imposition of the current sentence, be given the opportunity on resentence to present to the sentencing court the fact of the setting aside of the previous sentence and the amount of time illegally served thereunder for consideration in the imposition of a substitute sentence. Petitioner relies on Bauers v. Yeager, 1966, U.S.D.C. (N.J.), 261 F.Supp. 420, which sustains his position.
Let us say initially that we are not dealing in the instant case with a situation such as in Hill v. Holman, 1966, U.S.D.C., (Ala.), 255 F.Supp. 924. There, a prisoner had served six years of an original sentence when set aside and the district court ruled that time served on the erroneous sentence had to be credited against the later sentence imposed in the same case and for the same offense. We intimate no opinion as to what our decision would be in similar circumstances.
Rights of persons accused of crime are specifically enumerated in Article I, § 6 of the Constitution of Maine and consist of the right to counsel or self representation; to formal charge setting forth the nature and cause of the accusation; to confrontation of the witness (including the right of cross-examination); to compulsory process for witnesses; to speedy, public and impartial trial by a jury of the vicinity; to the privilege against selfincrimination.
In the area of sentencing, the Constitution is not so specific but in general terms decrees, § 6 'nor (shall he) be deprived of his life, liberty, property or privileges, but by judgment of his peers or the law of the land'; § 6-A, 'No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws * * *.' To the same effect, Amendment 14, § 1, Constitution of the United States: 'nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
The constitutional guaranties against deprivation of one's liberty except by 'the law of the land' or 'with due process of law', whether in our State Constitution or in the Constitution of the United States, are couched in terms identical in meaning and should be given coextensive application under similar circumstances. See Michaud v. City of Bangor, 1963, 159 Me. 491, 196 A.2d 106; Jordan v. Gaines, 1939, 136 Me. 291, 8 A.2d 585.
A convicted offender is not completely beyond the pale of constitutional protection. Smith v. United States, 1955, U.S.C.A., 5th Cir., 223 F.2d 750; Duncan v. Ulmer, 1963, 159 Me. 266, 274, 191 A.2d 617. Petitioner had pleaded guilty on information to a serious and infamous crime punishable by imprisonment in State Prison for a maximum term of five (5) years, 17 M.R.S.A. § 3551. Due process required that he have counsel representation at all critical stages of the prosecution against him unless he freely, knowingly and understandingly waived the same. Due process thus required that counsel representation be accorded the petitioner, even though a convicted felon, at that time in the trial scene when the judge undertook to pass sentence upon him; indeed the guilding hand of counsel, in many instances, may be practically impotent during the course of a trial or at the arraignment level, due to the forceful and irrefutable nature of the evidence against the accused, but, when the time for sentencing has been reached, the voice of the advocate will rise, in due protection of the offender, with vigorous, influential and informatory dialogue, to the end that the judicial choice of sentence may be made within a sound discretion in the light of all the mitigating circumstances favorable to his client. Green's constitutional rights in that regard were fully respected.
But due process does not require surrounding the sentence procedure with the same constitutional and evidentiary safeguards attached to any hearing where determination of guilt is involved. Our practice whereby the judge, prior to sentence and in open court, gives to the defendant or his counsel, or both, opportunity to be heard, making inquiry as to any past criminal activity of the defendant so...
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