Lonardo v. Langlois

• Decision Date: 30 November 1964
• Docket Number: No. 1643,1643
• Citation: 98 R.I. 493,205 A.2d 19
• Parties: Fiore G. LONARDO v. Harold V. LANGLOIS. M. P.
• Court: Rhode Island Supreme Court

Page 19

205 A.2d 19

98 R.I. 493

Fiore G. LONARDO v. Harold V. LANGLOIS.

M. P. No. 1643.

Supreme Court of Rhode Island.

Nov. 30, 1964.

Fiore G. Lonardo, pro se.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for respondent.

POWERS, Justice.

This application for a writ of habeas corpus was prosecuted, pro se, by an inmate of the adult correctional institutions, hereafter referred to as the petitioner. It alleges, inter alia, that the petitioner, sentenced to a three-year term on his plea of nolo contendere, was denied his constitutional right to trial by jury and that the sentencing superior court justice was, in effect, without jurisdiction by reason of prejudice. The petitioner prays that the sentence be quashed, a trial by jury be ordered, and that he be admitted to bail pending such trial.

We issued the writ and respondent's return admitted custody of petitioner but denied that it was unlawful. He attached a copy of the mittimus on the authority of which petitioner was committed and further denied every allegation attacking the validity of petitioner's detention.

On October 5, 1964 the cause came on to be heard and petitioner appeared in this court. Although he initiated his application without the assistance of counsel, he was accompanied by a member of the public defender's office who informed us that petitioner wished to speak in his own behalf. We permitted him to argue his cause by way of explaining and supplementing the allegations contained in his application, but his statements were not made under oath. Nor was any transcript compiled for the reason that this court does not have the facilities to do so.

From the application, his oral assertions, and the records which we requested the superior court to furnish, it appears that petitioner was indicated for receiving stolen money. On July 2, 1962 when arraigned to answer the indictment he pleaded not guilty and was admitted to bail. On September 25, 1962, he withdrew his plea of not guilty and was permitted to plead nolo contendere. Pending receipt of a presentence report, petitioner remained at liberty on bail.

On November 23, 1962, he appeared before a different superior court justice who, after hearing counsel for both parties, sentenced the accused to three years in the adult correctional institutions. It is to be noted that petitioner was represented by private counsel on each of his three appearances. The record of the proceedings in the superior court on November 23 discloses only that the justice heard counsel for each party and then based his sentence on the contents of the presentence report.

In his written and oral allegations and supplementary statements, petitioner asserts that he was under the impression that a plea of nolo contendere did not preclude his right to trial by jury; that he was not advised to the contrary by his counsel or either of the two superior court justices participating; that the sentencing justice had presided in a civil matter in which petitioner was involved; that in connection with those proceedings he had telephoned to said justice charging prejudice, thereby incurring hostility; that said hostility, ipso facto, disqualified said justice in the later criminal proceedings; and that upon sentence being pronounced, petitioner and his counsel immediately and very audibly claimed an appeal or the right to be tried before a jury.

The petitioner's contentions are to the effect that if, as he now understands, his plea of nolo contendere constituted a waiver of his right to trial by jury, his action was not the intelligent and intentional abandonment of a known right as stated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.

Further, petitioner contends, that in the light of previous circumstances which had engendered a hostile attitude the sentencing justice should have disqualified himself but, not doing so initially, must certainly have been alerted to petitioner's plight by his claim of appeal.

The petitioner makes certain other allegations which are patently without merit and, although considered, require no discussion.

The respondent contends that the writ heretofore issued should be quashed, since petitioner in making application therefor failed to comply with the provisions of G.L.1956, § 10-9-3, in several material respects. He argues specifically that the application was not accompanied by a copy of the mittimus, or, in lieu thereof, a statement in his application that either demand therefor was refused or for some reason could not be obtained. Nor, he points out, were the facts alleged verified under oath, and further that habeas corpus is not the proper remedy when the relief sought is other than petitioner's liberty.

In support of the contention that the instant application for the writ was defective in that it fails to comply with statutory requirements, respondent cites Ex parte Antoscia, R.I., 94 A. 871. An examination of that case, however, clearly discloses that, in the specific circumstances therein present, this court, acting within its discretion, was disinclined toward relaxing the statutory requirements. It does not stand for the proposition that strict compliance with such provisions is binding on this court. See also Petition of Bonn, 17 R.I. 572, 23 A. 1017, where despite noncompliance with the statute this court did hear the petitioner on the merits of the cause.

Here also, although cautioning that our decision in this instance should not be regarded as encouraging nonconformance, we are disposed to be lenient.

It is also respondent's contention that the writ should be quashed for the reason that habeas corpus is not the appropriate remedy, citing Asadoorian, for Writ of Habeas Corpus, 48 R.I. 50, 135 A. 322. We acknowledged the correctness of the conclusion on the facts of that case but the decision therein is not compelling on the facts of the instant cause. The issue at hand relates to procedure and in such a case this court has occasionally exercised its broad revisory powers. In re Lanni, 47 R.I. 158, 131 A. 52, affords such an example. There, Lanni was permitted to retract a plea of not guilty and plead nolo contendere. The case was continued for sentence and, when arraigned thereafter, defendant moved to withdraw his nolo plea and again plead not guilty. This motion was denied and thereupon, before the imposition of sentence, Lanni excepted thereto.

The cause came before this court on companion writs of mandamus and habeas corpus. Mandamus, which sought to order the superior court justice to allow defendant's bill of exceptions, was denied on the ground that a bill of exceptions did not lie. The court did agree, however, to hear Lanni on an amended petition for habeas corpus.

This court stated at page 162, 131 A. at page 53: 'There is no prerogative writ at common law which in its regular accepted form and according to the accepted practice under it is exactly appropriate to bring the respondent's objection before us. We will not refer him to any other extraordinary writ or process for relief. His petition for a writ of habeas corpus now pending furnishes an expeditious and convenient proceeding in which the respondent's objection may be considered.' See also Hyde v. Superior Court, 28 R.I. 204, 66 A. 292.

Nor are we unmindful of our regard for orderly procedure in habeas corpus proceedings as recently expressed in Kimball v. Pelosi, R.I., 192 A.2d 267, and to which respondent also calls our attention. We reiterate such regard but, consistent with our obligation under the constitutions of this state and of the United States to preserve and secure the right of every person to due process, we must, out of an abundance of caution, look to substance rather than form.

Moreover, one cannot realistically read the more recent decisions of the United States Supreme Court without concluding that, even though petitioner might well have more properly used some other means to obtain it, relief will not be denied solely on the ground that habeas corpus was not the appropriate remedy, particularly when application was made without the aid of counsel. See Johnson v. Zerbst, 304 U.S. 458, 58...