O'Neill v. Sharkey

• Decision Date: 14 August 1970
• Docket Number: No. 973-M,973-M
• Citation: 268 A.2d 720,107 R.I. 524
• Parties: Robert M. O'NEILL v. John F. SHARKEY, Acting Warden Adult Correctional Institutions. P.
• Court: Rhode Island Supreme Court

Page 720

268 A.2d 720

107 R.I. 524

Robert M. O'NEILL v. John F. SHARKEY, Acting Warden Adult Correctional Institutions.

No. 973-M.P.

Supreme Court of Rhode Island.

Aug. 14, 1970.

Edwin H. Hastings, Providence, for petitioner.

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

OPINION

POWERS, Justice.

On February 2, 1970, the above-named Robert M. O'Neill made application to this court for a writ of habeas corpus, seeking to vacate a three-year sentence imposed by a Superior Court justice on his finding that O'Neill had violated the terms of a deferred sentence agreement. The application, being made on oath, averred, inter alia, that at the hearing wherein sentence was imposed, O'Neill was denied the minimum fact finding process, and in particular was deprived of the benefit of effective representation by counsel as mandated by Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336. We ordered the respondent to show cause, if any he had, why the writ should not issue and his answer not denying applicant's averments relative to the Mempa standards, the application for the writ was granted and the cause assigned to the May calendar for a hearing. O'Neill v. Sharkey, R.I., 263 A.2d 704.

It appears from the record that on April 9, 1964, O'Neill was arraigned in the Superior Court on two indictments for harboring a murderer. He pleaded nolo contendere to each indictment, was sentenced to 18 months on one, and sentence was deferred on the other. (No. 32691) The record further discloses that O'Neill was released from the Adult Correctional Institutions on December 8, 1964, at which time the tems of his deferred sentence agreement commenced to run. Almeida v. Langlois, 97 R.I. 325, 197 A.2d 498.

Within the five-year period provided for in his deferred sentence agreement, specifically on August 18, 1969, O'Neill was arrested for allegedly breaking and entering in the nighttime with intent to commit larceny. He was arraigned on that charge in the then District Court of the Sixth Judicial District on the following day and pleaded not guilty. He was admitted to bail and the case continued to September 4, 1969, for hearing. O'Neill appeared on that date and was advised that a hearing on the complaint would be scheduled for some undetermined day in the future. He objected on the ground that the court lacked jurisdiction to continue the case for more than 14 days without his consent, relying on G.L.1956, § 12-10-9. ¹

In his oral argument and brief, O'Neill makes much of the fact that the complaint had not been heard at the time he was found to be in violation of his deferred sentence agreement. To the end that this contention may be foreclosed to any future protest that this facet of the instant cause was not considered by us, we hold that Brady v. Langlois, 104 R.I. 301, 243 A.2d 906, is dispositive of the question in that the alleged offense remained cognizable by the grand jury.

Meanwhile, on August 25, 1969, the Attorney General sought and obtained a capias from the Superior Court for the purpose of having O'Neill arraigned as a deferred sentence violator. It is not disputed that the Attorney General was motivated by O'Neill's conduct on August 18, 1969. O'Neill appeared in the Superior Court on the day the capias was issued and was released on bail until September 22, 1969, to which date the Attorney General's motion was assigned for hearing. On this latter date, O'Neill appeared in the Superior Court; his bail was revoked and a hearing on the Attorney General's motion was further assigned to September 25, 1969. On that date a hearing was held, but on what scale we are unaware because no transcript of that hearing was ordered. It is elementary that one who relies on alleged improprieties occurring at a hearing in a subordinate forum has the obligation to supply this court with a record of the proceedings of which he complains. No such record having been supplied in the instant cause, we would ordinarily not fault the hearing at which O'Neill now argues denied him an opportunity to question the witnesses produced against him, and to be heard in his own defense. However, he insists under oath that he was not provided with realistic representation by counsel and this allegation is not denied by respondent. Specifically, O'Neill swears that it was not until a few minutes before the September 25, 1969 hearing that a member of the Public Defender's staff was assigned to represent him and there was no time for meaningful conferring. Persuaded that the transcript of the hearing, if available, would shed no light on this allegation, we apply the rule that sworn statements in petitions for extraordinary writs that are not denied, are assumed by us to be true. Morin v. Zoning Board of Review, 102 R.I. 457, 232 A.2d 393; Kent v. Zoning Board of Review, 102 R.I. 258, 229 A.2d 769; Roberts v. Board of Elections, 85 R.I. 203, 129 A.2d 330.

In Mempa v. Rhay, supra, filed November 13, 1967, the United States Supreme Court held that the time of sentencing is a critical stage in a criminal case which...