Johnson v. Mullen

• Decision Date: 16 August 1978
• Docket Number: No. 77-64-C,77-64-C
• Parties: Ell JOHNSON v. James MULLEN, Warden. A.
• Court: Rhode Island Supreme Court

Page 909

390 A.2d 909

120 R.I. 701

Ell JOHNSON v. James MULLEN, Warden.

No. 77-64-C.A.

Supreme Court of Rhode Island.

Aug. 16, 1978.

[120 R.I. 713] William F. Reilly, Public Defender, Dale G. Anderson, Asst. Public Defender, for appellant.

Julius C. Michaelson, Atty. Gen., E. Martin Stutchfield, Sp. Asst. Atty. Gen., for appellee.

OPINION

KELLEHER, Justice.

This is an appeal from a judgment entered in the Superior Court denying an application for postconviction relief which was instituted pursuant to G.L.1956 (1969 Reenactment) ch. 9.1 of title 10. The applicant (Johnson) seeks to vacate a plea of nolo contendere he gave in 1968 to an indictment charging him with possession of burglar tools. His application is founded upon his sworn assertions that his 1968 plea cannot be classified as a voluntary and intelligent act because he was not fully informed as to certain matters.

In March 1968 Johnson appeared before a justice of the Superior Court and, through private counsel, entered tentative pleas of nolo contendere to three felony indictments and three misdemeanor complaints. The three indictments charged Johnson with robbery, breaking and entering a building in the nighttime with intent to commit larceny, and possession of burglar tools. The misdemeanor complaints were for larceny, speeding, and receiving stolen goods. Once the justice discovered that a presentence report had not been prepared, he postponed the imposition of sentence and gave Johnson the right to withdraw his plea.

About 7 weeks later, in May, Johnson once again stood before the justice. At that time he was represented by an attorney from the Office of the Public Defender. The sentencing justice addressed Johnson directly and explicated various consequences of his pleading to all of the charges. Johnson indicated that he understood his rights and the ramifications of pleading. He then stated that he wished to plead nolo contendere to the six offenses. Thereafter, Johnson was sentenced to 15 months at the Adult Correctional Institutions on the breaking-and-entering charge and given concurrent sentences of 10, 60, and 60 days, respectively, on the charges involving speeding, larceny, and receiving stolen goods. Sentence was deferred on the burglar-tools charge, and a 5-year suspended sentence was given on the robbery indictment which might be imposed anytime during a 5-year probationary period.

In May 1968 there was then pending against Johnson a federal narcotics charge. The assistant attorney general called this fact to the attention of the sentencing justice. After Johnson had completed serving his 15-month breaking-and-entering sentence, he was transferred to a federal institution, where he was incarcerated because of the narcotics charge. Johnson was released from federal custody in the summer of 1973.

Later, in March 1974, Johnson was adjudged to be a violator of the terms of his deferred and suspended sentences. The basis for the violation was a robbery charge which was totally unrelated to the robbery charge that was the subject of the May 1968 plea. As a violator, Johnson was sentenced to serve 5 years on the 1968 robbery charge to be followed by a consecutive 7-year sentence which was imposed because of the burglar-tools charge.

This application for postconviction relief was filed in June 1976. ¹ In his application Johnson maintained that the 7-year sentence for possession of burglar tools was illegally imposed because the 1968 plea upon which it was founded did not measure up to constitutional standards. In particular, he claims that his rights were violated in 1968 because (1) he was not informed of the maximum punishment which he could receive on the possession charge, (2) the record fails to disclose that there was a factual basis to support his plea, and (3) he was unfamiliar with the workings of our deferred-sentence statute.

The Superior Court justice who heard this application ruled on only one of Johnson's claims. The hearing justice determined that the sentencing justice was under no obligation to apprise Johnson, either prior to accepting the plea or when imposing sentence, of the ins and outs of the deferred-sentence mechanism which is set forth in G.L.1956 (1969 Reenactment) § 12-19-19. However, the hearing justice felt that if such an obligation existed, Johnson was still not entitled to relief. In the justice's opinion a fair reading of the May 1968 proceeding demonstrated that Johnson had been erroneously informed that a deferred sentence would hang over his head for all time in the future. Consequently, although Johnson may not have been told of the precise operation of the deferred sentence, he was not prejudiced since the description given him about the deferred sentence was much more severe than it could lawfully be. Naturally, Johnson disagrees with the hearing justice's reasoning.

Before addressing the issues raised in Johnson's application, we would note that before us Johnson makes several additional claims as to why his 1968 plea should be set aside. Since these grounds for relief were not raised in his original application, we decline to consider them at this time. The appropriate forum for the initial hearing on such matters is the Superior Court. Section 10-9.1-2. The Legislature has established an orderly procedure for dealing with postconviction applications whereby claims are heard and, if necessary, evidence produced to provide a complete record for review. We will not sanction departures from that procedure absent the most pressing circumstances. This case does not present such a situation. Johnson may, of course, file another application which may be heard in the Superior Court if the requirements of § 10-9.1-8 are satisfied. ²

No one disagrees with the general proposition of constitutional law underlying this appeal. By pleading guilty or nolo contendere to criminal charges, a defendant waives several federal constitutional rights and consents to the judgment of the court. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); State v. Welch, 112 R.I. 321, 309 A.2d 128 (1973); Flint v. Sharkey, 107 R.I. 530, 268 A.2d 714 (1970). Consequently, out of just consideration for persons accused of crimes, the federal due process clause mandates that waivers of constitutional rights must, when viewed in light of the totality of the circumstances, be voluntary and " knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (1970); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Bishop v. Langlois, 106 R.I. 56, 256 A.2d 20 (1969); Northrop v. Langlois, 100 R.I. 349, 215 A.2d 926 (1966); Cole v. Langlois, 99 R.I. 138, 206 A.2d 216 (1965). This standard serves as the litmus paper against which all guilty or nolo pleas must be tested. While the parties are in agreement as to these fundamental principles, they differ on whether the constitutional requirements have been met in this case.

At the outset we can easily dispose of Johnson's claim that there must be a factual basis for a nolo plea clearly set forth on the record. Although Super.R.Crim.P. 11, effective as of September 1, 1972, now provides that a "court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea," 10 years ago, in May 1968, there was no such court rule necessitating the sentencing justice to conduct such an inquiry. Nor was there in 1968 or now, for that matter, any constitutional requirement that a nolo plea have a factual basis.

We find persuasive the fact that under federal criminal procedure no factual basis for a nolo plea need be established by the trial justice. See Fed.R.Crim.P. 11; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); United States v. Prince, 533 F.2d 205 (5th Cir. 1976); United States v. Wolfson, 52 F.R.D. 170 (D.Del.1971), Aff'd 474 F.2d 1340 (3d Cir. 1973). Furthermore, even though a nolo plea in Rhode Island is, for all practical purposes, equivalent to a plea of guilty, Cole v. Langlois, 99 R.I. 138, 206 A.2d 216 (1965), the factual basis rule with regard to guilty pleas has been deemed a product of Fed.R.Crim.P. 11 and prudent policy rather than a constitutional requirement. Christopher v. United States, 541 F.2d 507 (5th Cir. 1976); Edwards v. Garrison, 529 F.2d 1374 (4th Cir. 1975), Cert. denied, 424 U.S. 950, 96 S.Ct. 1421, 47 L.Ed.2d 355 (1976); Roddy v. Black, 516 F.2d 1380 (6th Cir.), Cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975); Freeman v. Page, 443 F.2d 493 (10th Cir.), Cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971).

Since the sentencing justice was under no constitutional directive to ascertain whether there was a factual basis for Johnson's plea, we must deny this facet of his appeal.

As we have previously observed, in order for a plea to a criminal charge to be a voluntary and knowing act, a defendant must be aware of the consequences of his plea. Prior to our rulings in Bishop v Langlois, 106 R.I. 56, 256 A.2d 20 (1969), and the United States Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), ³ it was incumbent upon a trial justice, before accepting a plea, to personally ascertain from an accused, even if represented by counsel, whether he was aware of the nature and consequences of his plea, and to admonish him of those consequences if it appeared that he was not otherwise knowledgeable thereof. Flint v. Sharkey, 107 R.I. 530, 268 A.2d 714 (1970); Harris v. Langlois, 100 R.I. 196, 212 A.2d 715 (1965); Cole v. Langlois, 99 R.I. 138, 206 A.2d 216 (1965). However, if the justice failed to perform his duties in this regard, the defendant...