Lemme v. Langlois

• Decision Date: 19 July 1968
• Docket Number: No. 15-M,15-M
• Citation: 104 R.I. 352,244 A.2d 271
• Parties: John E. LEMME, Jr. v. Harold V. LANGLOIS, Warden. P.
• Court: Rhode Island Supreme Court

Page 271

244 A.2d 271

104 R.I. 352

John E. LEMME, Jr. v. Harold V. LANGLOIS, Warden.

No. 15-M.P.

Supreme Court of Rhode Island.

July 19, 1968.

Leonard A. Kamaras, Providence, for petitioner.

Herbert F. DeSimone, Atty. Gen., Donard P. Ryan, Asst. Atty. Gen., for respondent.

OPINION

ROBERTS, Chief Justice.

This petition for a writ of habeas corpus was brought by the petitioner to obtain his discharge from the allegedly unlawful custody of the respondent warden. At the time the petition was brought, the petitioner had been in the custody of the respondent pursuant to an order of a justice of the superior court sentencing him to a term of 90 days in the adult correctional institutions after having been adjudged in contempt of court. At the same time the court imposed a sentence of 11 months on the petitioner pursuant to his plea of nolo contendere to an indictment charging him with receiving money under false pretenses.

The record discloses that petitioner was indicted in November 1965 on a charge of obtaining money under false pretenses, and on December 6 entered a plea of not guilty thereto. On January 17, 1966, petitioner appeared before the superior court and entered a plea of nolo contendere to the charge set out in the indictment. Subsequently, petitioner was taken into custody March 31, 1966, on a capias, but April 21, was released on personal recognizance to appear May 5 for disposition of the case. The petitioner was again taken into custody on June 17 and was held at the adult correctional institutions without bail for disposition of the case on August 8, 1966.

The petitioner thereafter moved for permission to change his plea on the indictment from nolo contendere to not guilty, alleging in his motion that the entry of the plea of nolo contendere '* * * was done by mistake.' At a hearing on this motion on September 22, 1966, petitioner testified: 'Well, I had never been into court before. I never got involved in any crime or anything, and between guilty and nolo, to me, it didn't mean anything because I never knew what either one meant or what was involved, actually.' Thereafter the trial justice stated that he was satisfied that petitioner had lied in so testifying, saying with respect to his testimony: 'This was a deliberate falsehood which was given in the presence of the Court, and I intend to treat it summarily at this time.' He then adjudged petitioner in contempt of court and sentenced him to serve a term of 90 days and, denying the motion to change the plea from nolo contendere to not guilty, sentenced petitioner on a plea of nolo contendere to the indictment to a term of 11 months to run '* * * from and after the expiration of the sentence for contempt of 90 days * * *.'

Shortly thereafter, on October 3, 1966, while he was incarcerated pursuant to the sentence of 90 days for contempt of court, petitioner brought the instant petition for habeas corpus and in connection therewith moved to be admitted to bail pending hearing thereon. This court on that petition directed the attorney general to show cause why the writ should not issue and thereafter ordered the writ to issue and, pursuant to petitioner's motion therefor, admitted him to bail.

The state questions, first, whether petitioner here is entitled to the issuance of the writ, arguing that, having been admitted to bail, petitioner's personal liberty is in no way curtailed. It relies on our decision in Moretti v. Laglois, 94 R.I. 470, 181 A.2d 625. There we adopted the view that to be entitled to the issuance of the writ, the applicant must be imprisoned or otherwise restrained of his personal liberty, but that once the applicant, so restrained, has been released or discharged therefrom, the issue becomes moot and no useful purpose would be served by further consideration thereof. The rule as thus stated in Moretti might well be the prevailing rule in cases where the applicant for the writ is, in fact, at that time free from all restraint and custody.

However, some doubt as to the validity of this construction of our statute, G.L.1956, § 10-9-1 et seq., has been raised by the construction given the federal habeas corpus statute, 28 U.S.C. § 2241 et seq., in Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. There the United States Supreme Court said that the federal statute by its terms requires that the applicant be 'in custody' when the application for habeas corpus is filed but does not limit the relief that may be granted to discharge of the applicant from physical custody. The court said, in part: '* * * we conclude that under the statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application.'

The instant case, however, does not confront us with a situation in which petitioner is free of all restraint, as was the situation in Carafas, where the applicant had completed service of the sentence that had been imposed upon him. In the instant case petitioner is a person who had been admitted to bail, and, as we understand the issue, the question is whether under § 10-9-1 he is a person who is '* * * otherwise restrained of his liberty by any officer or other person * * *' and, therefore, entitled to the issuance of the writ if the custody from which he was freed on bail was unlawfully imposed. We are of the opinion that admission of an accused person to bail does not operate so as to relieve him of all custodial restraint. The great weight of authority is to the contrary and supports the view that such person is in custody of the bail and, constructively at least, in the custody of the law.

The object of bail in a criminal case is to assure the presence in court of the accused for trial, Quattrocchi v. Langlois, 100 R.I. 741, 744, 219 A.2d 570, 573, and to put the accused as much under the power of the court as if he were in the custody of the proper officer. Matera v. Buchanan, Fla.App., 192 So.2d 18. Admission to bail keeps the accused '* * * constructively in the custody of the court * * *.' State v. Olson, S.D., 152 N.W.2d 176, 177. We adopt the view that one who has been admitted to bail is "* * * not only in the custody of his bail, but he is also in the custody of the law." State v. Bates, 140 Conn. 326, 330, 99 A.2d 133, 135. We hold then that petitioner here, having been admitted to bail, was restrained of his liberty within the meaning of § 10-9-1 and, therefore, was entitled to the issuance of the writ if the custody in which he is held is unlawful.

We turn then to the question of whether the custody in which petitioner was held pursuant to the sentence of a term of 11 months, from which custody he was admitted to bail on order of this court, was unlawful. He argues that the denial of his motion for permission to withdraw his plea of nolo contendere deprived him of his constitutional right to a trial by jury and to an appeal from a verdict returned by the jury. As we understand him, he is arguing that he may withdraw his plea of nolo contendere and enter a plea of not guilty as of right and that a denial of this right at any time prior to the imposition of sentence on the plea of nolo contendere denies him his constitutional right to a jury trial.

In Cole v. Langlois, 99 R.I. 138, 206 A.2d 216, we noted that a plea of nolo contendere is for all purposes related to the indictment to which it is entered equivalent to a plea of guilty. We there held that where a plea of nolo contendere is entered by an accused voluntarily and intelligently, it constitutes a waiver of his right to trial by jury. The antecedent issue then to be determined is whether in the instant case the entry of the plea of nolo contendere constituted a valid waiver of petitioner's right to trial by jury. In Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, 869, the Supreme Court said: 'The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed 1461,-'an intentional relinquishment or abandonment of a known right or privilege'-furnishes the controlling standard.' We turn then to the record here to ascertain whether, in pleading nolo contendere, petitioner voluntarily, intentionally, and intelligently relinquished his right to a jury trial.

The transcript discloses that on January 17, 1966, petitioner, when arraigned before a justice of the superior court, was represented by able counsel who, on petitioner's behalf, entered a plea of nolo contendere. Counsel went on to inform the court that he had discussed with petitioner,...