Morgan v. State

• Decision Date: 11 February 1972
• Citation: 287 A.2d 592
• Parties: Richard A. MORGAN v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 592

287 A.2d 592

Richard A. MORGAN v.STATE of Maine et al.

Supreme Judicial Court of Maine.

Feb. 11, 1972.

Bernstein, Shur, Sawyer & Nelson by Sumner T. Bernstein, F. Paul Frinsko, Portland, for plaintiff.

John E. Quinn, Asst. Atty. Gen., Augusta, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

This is an appeal from the denial by a single Justice of post-conviction habeas corpus relief sought pursuant to 14 M.R.S.A. § 5502 et seq.

Petitioner claims entitlement to post-conviction remedy on the following grounds: (1) fatal insufficiencies in the indictment for robbery to which he had pleaded guilty, (2) violation of law in the acceptance and entry of his plea of guilty which vitiate the plea and the conviction resting upon it, (3) illegality in the sentence insofar as the presiding Justice allowed matters beyond the Court record to be a factor in the sentencing, and (4) mental incapacity resulting from involuntary intoxication and alleged as a defense to the crime of robbery under the circumstances involved.

I.

We evaluate, initially, the assertions of insufficiencies in the indictment.¹

Petitioner says, first, that the indictment, although charging resort to force and violence, is inadequate in that it fails to allege, further, that the victim had been put in fear.

The argument is erroneous.Any misleading implications from language in State v. Perley, 86 Me. 427, 30 A. 74(1894) or dicta in State v. Greenlaw, 159 Me. 141, 189 A.2d 370(1963)andState v. Castonguay, Me.,263 A.2d 727(1970), that 'force and violence' and 'putting the victim in fear' are conjunctive rather than alternative essential elements of robbery, have now been definitively clarified in State v. Levesque, Me., 281 A.2d 570(1971).Levesque settles that it has always been the law of Maine that 'force and violence' and 'putting the victim in fear' are alternative delineations of essential elements of the crime of robbery.Petitioner takes nothing by this point.

Petitioner's second assertion is that the indictment omits 'to state with particularity a description of the property allegedly taken . . ..'This claim is made in respect to the indictment's description of the property stolen as being 'one hundred and twenty-five ($125.00) dollars.'Petitioner refers to State v. Thomes, 126 Me. 163, 166, 136 A. 726, 728(1927) in which it is said that:

'An allegation of simply so many dollars, or so many dollars in money without further description or reason for the omission is too indefinite.'(p. 166, 136 A. p. 728)

State v. Thomes, supra, involved an indictment for larceny.Petitioner maintains that the same analysis establishes deficiency in an indictment for robbery which contains larceny as an essential element.

The issue is foreclosed by our decision in State v. Fitzherbert, Me., 242 A.2d 686(1968) which holds that the statement in Thomes upon which petitioner relies is no longer the law 'under our new rules of criminal procedure.'(p. 688)Whether operative from December 1, 1965(the date of the new rules) or June 10, 1968(the date of the decision) Fitzherbert governs the present indictment (returned on April 8, 1969.)

Petitioner contends, third, that the indictment alleges only that the offense was committed in Cumberland County without particularizing a specific place in the County.In Cookson v. State, Me., 237 A.2d 589(January 26, 1968), we decided, regarding the crime of assault, that when an indictment charges a crime in which place is not an essential element, the allegation of place serves only to fix the venue of the prosecution; and for this purpose an allegation of County will suffice.Since place is not an essential element of the crime of robbery, under the governing effect of Cookson, the allegation of the present indictment (April 8, 1969) that the offense was committed in Cumberland County is adequate.

II.

More complex are the issues raised by petitioner's claim that his plea of guilty entered by the Court on September 27, 1969 is automatically vitiated by the failure of the trial judge to comply with Rule 11, M.R.Crim.P.-as alleged to require that there be made a record (1) in the proceeding in which the judgment of conviction was entered (2) by the particular method of an interrogation conducted by the judge and addressed to the defendant(now the petitioner) personally, which (3) reveals, adequately, an affirmative showing of underlying facts that (a) the guilty plea was made voluntarily and with understanding of the nature of the charge, and (b)defendant had in fact committed the acts charged as criminal against him.

During the past two and one-half years, this Court has had occasion to deal with potential interrelationships among our own Rule 11 M.R.Crim.P., the federal Criminal Rule 11 and the Constitution of the United States-especially in light of two leading decisions of the Supreme Court of the United States in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418(April 2, 1969)andBoykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(June 2, 1969).

In Child v. State, Me., 253 A.2d 691(1969);Grass v. State, Me., 263 A.2d 63(1970);Wilson v. State, Me., 268 A.2d 484(1970); and most recently Cote v. State, Me., 286 A.2d 868(1972);we confronted guilty pleas which had been tendered, accepted and entered on dates prior to the decisions handed down in both McCarthy and Boykin.We found that it was unnecessary to decide controlling law in those cases regarding particular issues deemed precipitated by either McCarthy itself or McCarthy conjoined with Boykin on the grounds that, as to any guidance afforded by McCarthy or any governing effect which might be attributed to McCarthy under Boykin as to the law of Maine, Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16(May 5, 1969) had held that the decision of McCarthy would be declined retroactive application.

In the present case, however, we meet a guilty plea tendered, accepted and entered subsequent (September 27, 1969) to both McCarthy and Boykin.We, therefore, can no longer postpone evaluation of the issues crystallized by the import of McCarthy separately or as combined with Boykin.

In an extended discussion most recently presented in Cotewe took opportunity to elucidate significant aspects of the law of Maine as operative prior to the effective date of Rule 11 M.R.Crim.P.,-December 1, 1965.

We recognized in Cote that one effect of the law of Maine had been that a defendant, by virtue of the formal entry of a plea of guilty (or nolo contendere) was, without trial, validly convicted of crime and subjected to the imposition of criminal penalty on the principle that the formal conclusory plea of guilty (or nolo contendere) appearing of record was sufficient as proof of defendant's consent.Validity was established without need that the plea be accompanied on the record by an affirmative showing of additional underlying factual information adequate to establish that defendant's consent had been in fact voluntarily and understandingly given.Further, the conviction and imposition of penalty remained valid unless and until the defendant could produce evidence sufficient to meet the ultimate burden of proof cast upon a defendant who had entered a formal plea of guilty upon the record that he establish, by a fair preponderance, that the guilty plea of record was in fact tendered involuntarily or without understanding and was, therefore, constitutionally defective.

The milestone significance of the decision of the United States Supreme Court in Boykin(June 2, 1969) is that it holds such approach violative of federal due process.Boykin requires, as a precondition of the constitutionality of the imposition of criminal penalty purported to be justified by the consent of the defendant, that more appear affirmatively of record than merely the entry of the formal plea of guilty.The new constitutional feature developed in Boykin is aptly summarized in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970) in the following language:

'The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. . . .The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.'(n. 4, p. 747, 90 S.Ct. p. 1468, n. 4)(emphasis supplied)

Boykin thus mandates, as requisite under the federal Constitution by virtue of the Fourteenth Amendment as binding upon the States, a shift of responsibility regarding the record.Boykin forbids a system which allows a conviction of crime and consequent imposition of criminal penalty to be justified as consensual merely on the basis of a formal plea entered of record and by resort to the rationale that the enry of the plea on record carries a regularity sufficient to cast upon the defendant who tendered that plea an ultimate burden of proof to show, preponderantly, that it was in fact tendered involuntarily or without understanding.Boykin introduces the imperative that a consensually based conviction of crime and imposition of criminal penalty can be valid under the federal Constitution only if the formal plea, held to be the consent of the defendant, is supported on the record by the disclosure, additionally, of underlying factual information adequate to show affirmatively that the formal plea of record was in fact a voluntary and understanding consent by defendant-including the waiver of constitutional rights and privileges-to be subjected to the imposition of criminal penalty.

It is now abundantly clear that the portion of Rule 11 M.R.Crim.P., which charges the trial judge that he is not to accept a guilty plea

'without first . . . addressing the defendant personally and determining that the plea is made voluntarily with...