Mears, In re
| Citation | 124 Vt. 131,198 A.2d 27 |
| Decision Date | 10 February 1964 |
| Docket Number | No. 1976,1976 |
| Parties | In re Donald Ernest MEARS. |
| Court | Vermont Supreme Court |
Eugene V. Clark, Bennington, for plaintiff.
R. Marshall Witten, State's Atty., Benington, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH, and SYLVESTER, JJ.
This is a writ of habeas corpus. The petitioner, Donald Harold Mears, seeks to test the legality of the confinement in the House of Correction at Windsor, Vermont, of his minor son, Donald Ernest Mears. The following facts set forth in the petition are not in dispute.
The son, Donald Ernest Mears, a minor, was born on December 25, 1943. On December 2, 1963, he was arraigned before the Bennington Municipal Court at Bennington, Vermont, on two informations and warrants, both dated November 2, 1963. The first, bearing docket No. 30061, charged him in count one thereof, with the crime of breaking and entering in the daytime, and in count two, with the crime of petit larceny.
In the second information and warrant, docket No. 30062, he was charged in count one with breach of peace, and in count two with a further breach of peace.
On December 2, 1963, pleas of guilty were entered on each count of both complaints. A pre-sentence investigation was ordered by the court. Upon consideration thereof, the court on December 6, 1963 imposed the following sentences to be served in the House of Correction. In Docket No. 30061, on count one, burglary, to serve a minimum of one year and a maximum of three years; on count two, petit larceny, to serve a minimum of four months and a maximum of six months.
At the same time, the court imposed the following sentences to be served in the House of Correction in docket No. 30062. Under count one thereof, breach of peace, a minimum of one year, and a maximum of three years; and under count two, breach of peace, a further minimum sentence of one year, and a maximum of three years. These two sentences were ordered to run concurrently with each other, and also to be served concurrently with the sentences imposed in docket No. 30061.
Pursuant to the above sentences the court issued its mittimi on December 6, 1963. The boy became 20 years old 19 days thereafter. Since that time the son, Donald Ernest Mears, has been confined thereunder in the House of Correction. The father, Donald Harold Mears, by this petition seeks his son's release from imprisonment.
The prosecutions arose out of the following facts. While hunting in Sandgate, Vermont, on November 18, 1963, Mears, and a younger boy, Joseph Wright, age 16, burglarized a camp and took therefrom a number of articles, which is the basis of the burglary and petit larceny counts. The following day the boys were at the town dump and deliberately shot two dogs which happened to be in that area. Each of the boys shot at the dogs. Mears fired first in each instance. By reason of this conduct the prisoner was charged with two counts of breach of peace. His companion, Wright, was also arrested and charged with all of the offenses preferred against Mears. Their arraignment in court took place on the same date.
The offenses of petit larceny and breach of peace are misdemeanors, and not felonies. The Mears boy was not represented by counsel at the time of his arraignment when pleas of guilty were entered.
Mears was first arraigned on the complaint charging the offenses of breach of peace. Following the pleas of guilty to these charges, the court then took up the burglary and larceny cases. The petitioner claims that he was not appointed guardian ad litem for his son until after pleas had already been entered in the breach of peace cases. Following is the substance of the record before us on this point.
When the court convened on December 2, 1963 the two boys were present with their respective fathers. Prior to any arraignment a general statement was made by the court that the respondents would be afforded the opportunity to obtain an attorney if they so desired. Further, that 'Any minor in Court without a parent, guardian or attorney will not be allowed to enter a plea at this time, * * *.'
The Wright boy was first arraigned on the two breach of peace counts. The court inquired of the boy and his father as to whether they desired counsel, and was informed that they did not. After having read the complaint relating to these counts the court advised the father to confer with his son. After a conference between father and son pleas of guilty were entered. Prior to the arraignment of the Wright boy on the burglary and larceny counts, the court made this statement to his father. 'You are again acting as Guardian Ad Litem for your son?' The father answered 'Yes'. The father and son were advised that the court would assign counsel if desired. This was declined. The court again suggested a conference between father and son. After this had taken place a plea of guilty was entered on each count.
Following the Wright cases, the Mears boy was first arraigned on the breach of peace counts. His father was present and substantially the same pattern was followed by the court as in the Wright cases. Prior to the reading of any of the counts the court made this statement: This was followed by the father's answer, 'We do not wish to have counsel.' Following the disposition of the breach of peace cases, and prior to arraignment on the burglary and larceny charges the court made this comment,--'Now on the other complaint, we appoint you guardian Ad Litem for your son also.'
On each of the two warrants charging the prisoner with the four offenses there appear notations covering the proceedings, such as name, age, offense, plea, sentence, etc., including the following, 'Donald H. Mears respondent's father appointed guardian ad litem.'
The basis of the petitioner's claim to his son's unlawful imprisonment is contained in his petition, which in part states:
'5) Such imprisonment is unlawful in that at the time of the arraignment and at all times thereafter the Court failed to appoint counsel to represent the prisoner, being a minor charged with the felony of breaking and entering in the daytime, contrary to the provisions of Title 33, Vermont Statutes Annotated, section 678 making such appointment mandatory.
'The Court also failed at all times during the foregoing to appoint a Guardian ad litem for the prisoner with respect to the crimes charged under docket No. 30062, being the first charges under which the prisoner was arraigned on said December 2, 1963. * * *'
'That although the Court appointed the prisoner's father, your petitioner, Donald Harold Mears, Guardian ad Litem with respect to the information and warrant docketed No. 30061, which was the second complaint in order of time upon which the prisoner was arraigned on said December 2, the failure of the Court to appoint a Guardian ad Litem under docket No. 30062 and counsel under count one of docket No. 30061 makes all proceedings with respect to the prisoner unlawful from the time of his arraignment to and including his continued imprisonment at the time of this application, especially where as in this case the arraignments, pleas, sentencing, and commitment under all counts were handled together and disposed of at the same time by the Court and those carrying out its mandates.'
The claims of the petitioner bring into focus 33 V.S.A. § 678 relating to the appointment of a guardian ad litem for a minor charged with a crime, and right of counsel, which provides:
A related statutory provision, 13 V.S.A. § 1, defines felonies and misdemeanors in the following language: Under this section even though the penalty for an offense may be imprisonment in the state prison, and thereby a felony, the fact that there is an alternate penalty by way of a fine does not reduce the offense to a misdemeanor. State v. Howard, 108 Vt. 137, 143, 144, 183 A. 497. This is likewise the case where, by the authority of 13 V.S.A. § 7037, the court in its discretion imposes sentence to the house of correction for the same term to which a respondent over sixteen years of age might have been sentenced to the state prison.
From the record we are convinced that Mr. Mears, senior, acted as guardian ad litem for his son during the proceedings, and was so considered by the court and parties. While it would have been better practice on the part of the court to have appointed a guardian ad litem in express terms prior to any arraignment, the record discloses a substantial compliance with the requirements of 33 V.S.A. § 678 relative to guardians ad litem. Furthermore, no prejudice is made to appear.
We speak of substantial compliance because of the nature of these proceedings. To prevail on habeas corpus the petitioner must establish a defect of a kind and magnitude sufficient to oust jurisdiction of the court of conviction. It is to be distinguished from a proceeding reviewing for errors in the trial. In re Moses, 122 Vt. 36, 40, 163 A.2d 868.
In the Moses case, supra, the respondent, a minor, pleaded guilty to a felony charge. This Court held that he could, and did, intelligently waive the right to counsel. Subsequent to the handing down of this opinion, 33 V.S.A. § 678 was enacted. This statute requires the trial court to appoint a guardian ad litem for any minor before it, charged with a crime, who is unrepresented by counsel. It also requires that a minor charged with a...
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