Petition of Croteau

• Decision Date: 05 March 1968
• Citation: 353 Mass. 736,234 N.E.2d 737
• Parties: Petition of Joseph P. CROTEAU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 737

234 N.E.2d 737

353 Mass. 736

Petition of Joseph P. CROTEAU.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1968.

Decided March 5, 1968.

Chester C. Paris, Wakefield, Samuel H. Brenner, Woonsocket, R.I., with him, for petitioner.

Brian E. Concannon, Sp. Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

KIRK, Justice.

The single justice reserved and reported without decision this petition for a writ of habeas corpus on the petition, the return, the transcript of evidence of a hearing before him, and his findings of fact. Croteau contends that he was denied due process of law when the Appellate Division of the Superior Court for the review of sentences (G.L. c. 278, § 28A) while he was without counsel increased his sentence. We summarize the facts as found by the single justice.

In 1957, Croteau was indicted on a charge of assault with intent to murder while armed with a dangerous weapon, to wit, a 'sawed-off shotgun.' He pleaded not guilty to the indictment. He was represented by counsel. During his trial and after consulting counsel, he changed his plea to guilty. On October 17, 1957, the trial judge imposed a sentence of not less than five nor more than eight years, along with a lesser sentence on another indictment to run concurrently. Croteau was notified of his right to appeal his sentence to the Appellate Division of the Superior Court, but at first elected not to do so. On November 5, however, he requested leave to file a late appeal which was granted. The Appellate Division amended the original sentence by substituting a sentence of not less than twelve nor more than fifteen years.

Croteau's hearing before the Appellate Division took place prior to the adoption of S.J.C. Rule 3:10, 351 Mass. 791, formerly Rule 10 of the General Rules, as amended. At the time of his hearing, it was the practice in the Appellate Division not to hear counsel for either the prosecution or the person convicted. The jurisdiction of that body was, and is, limited to a review of the sentence imposed. G.L. c. 278, § 28B. This practice was based on the belief that the propriety of the sentence imposed could best be determined by face-to-face confrontation with the prisoner, unaffected by advocacy for either side. In this way, a prisoner's attitude, prior record, probation report and chance of rehabilitation could best be judged. Croteau received such a hearing without counsel before his sentence was increased. At the time of his appeal, Croteau knew that his sentence could be increased by the Appellate Division. A later request for a rehearing by the Appellate Division was denied.

Croteau's argument is based on several cases decided by the Supreme Court of the United States holding that the Sixth Amendment, which is made applicable to the States by the Fourteenth Amendment, requires that an accused be permitted counsel at every 'critical stage' of the proceedings against him. Townsend v. Burke, Warden, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (sentencing). Chessman v. Teets, Warden, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (settling record for appeal). Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (certain forms of arraignment). The preceding cases were decided under the rule in Betts v. Brady, Warden, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1695. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (trial). White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (preliminary hearing in certain circumstances). Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (when suspicion focuses upon an individual). United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (lineup). Mempa v. Rhay, Penitentiary Superintendent, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (revocation of probation or deferred sentencing). See Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (Appeal. Based on the Equal Protection Clause); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 527 (nonadversary juvenile delinquency proceeding). The rationale underlying all of the cases cited and in particular the considerations which led the Supreme Court of the United States to hold, in the Townsend and Mempa cases, that sentencing is a 'critical stage' at which the defendant must be afforded assistance of counsel, apply as well to the review of sentences by the Appellate Division which, under G.L. c. 278, § 28B, is empowered to reduce, increase, or affirm the...