Roy v. Perrin

• Decision Date: 12 February 1982
• Docket Number: No. 81-103,81-103
• Citation: 122 N.H. 88,441 A.2d 1151
• Parties: Cleo R. ROY v. Everett I. PERRIN, Warden, New Hampshire State Prison.
• Court: New Hampshire Supreme Court

Page 1151

441 A.2d 1151

122 N.H. 88

Cleo R. ROY v. Everett I. PERRIN, Warden, New Hampshire State Prison.

No. 81-103.

Supreme Court of New Hampshire.

Feb. 12, 1982.

James E. Duggan, Appellate Defender, Concord by brief and orally, for plaintiff.

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on brief and orally), for the State.

BROCK, Justice.

This is an appeal from the denial of a petition for writ of habeas corpus. The plaintiff sought the writ alleging that: (1) his plea of guilty to second-degree murder was involuntary; (2) he was incompetent to plead guilty; (3) under RSA 169:21-b, his election to be tried as an adult was invalid; and (4) the sentencing procedure in his case was improper due to the lack of a presentence investigation report when he was originally sentenced. After a hearing, the Superior Court (Dalianis, J.) denied the writ, but ordered that a presentence report be prepared and that a new sentencing hearing be held. The order was stayed pending appeal.

Both parties appeal from the court's decree. The plaintiff appeals those portions of the decision which relate to the finding that he was competent to plead guilty, that his plea was voluntary, and that, under RSA 169:21-b, his waiver of a hearing by which he would be certified for trial as an adult, instead of as a juvenile, was valid. The State appeals the court's order that the plaintiff must be resentenced. We affirm the trial court's denial of the writ of habeas corpus, but hold that it erred in its determination that the defendant must be resentenced.

On October 3, 1976, a juvenile petition (RSA 169:21-a) was filed against the plaintiff, who was then fifteen years old, alleging that he had killed a police officer, an act which would have been a felony (first-degree murder) if he had been an adult.

On October 27, 1976, in the Manchester District Court (O'Neil, J.) the plaintiff, represented by counsel, waived a certification hearing (RSA 169:21-b). The waiver was made in connection with an agreement that the plaintiff would waive indictment on a first-degree murder charge, and plead guilty to a complaint charging him with second-degree murder. In addition, the State agreed that it would recommend a sentence of life imprisonment, RSA 630:1-b II, with the understanding that "the minimum eighteen years would be in effect and the normal parole eligibility ... would apply."

On November 4, 1976, the district court certified the plaintiff to the superior court for treatment as an adult, after considering a comprehensive probation-investigation report which had been reviewed by both the plaintiff and the State, and other relevant information before it.

On November 9, 1976, the plaintiff appeared in the Superior Court (King, J.) with counsel and waived indictment by the grand jury. On the same date, the State filed a complaint charging him with second-degree murder, RSA 630:1-b I, and a hearing was held at which the plaintiff appeared and indicated his intention to enter his plea of guilty in accordance with his plea bargain arrangement with the State. The trial court, upon being advised of what the State's sentence recommendation would be and before any plea was entered, not only advised the plaintiff that it would not be bound by the State's sentence recommendation, but also informed him that the recommendation would not be accepted. A recess was taken and, after a period of deliberation and consultation with his counsel and parents, the plaintiff nevertheless decided that he would plead guilty to the second-degree murder charge. The record indicates that an important factor in his decision to do so was to avoid the possibility of a "life without parole" sentence which might result if his plea-bargain arrangement with the State should collapse in its entirety and he should later be convicted of first-degree murder. See RSA 630:1-a III; (those convicted of first-degree murder are not eligible for parole while those convicted of second-degree murder are.) Cf. State v. Farrow, 118 N.H. 296, 303, 386 A.2d 808, 812 (1978).

The trial court then addressed numerous questions to the plaintiff about his plea, was satisfied that the plaintiff entered it freely, voluntarily and intelligently, and accepted it. During the sentencing hearing, the court read the probation-investigation report and numerous other documents transferred from the district court and gave all parties an opportunity to be heard on the question of what sentence should be imposed. After hearing the State's and the plaintiff's counsel's sentence recommendation, and giving the plaintiff himself an opportunity to speak in his own behalf, the trial court imposed a sentence of "fifty years to life."

Thereafter, the plaintiff obtained new counsel and moved to withdraw his certification as an adult, his waiver of indictment, and plea of guilty. After a hearing in March 1977, that motion was denied (King, J.). An appeal was taken to this court, and we affirmed the ruling of the trial court, holding that the record fully supported a finding that his plea of guilty and waiver of a certification were voluntary and knowing and that the certification was made on evidence which furnished a sufficient basis for the order. State v. Roy, 118 N.H. 2, 3, 381 A.2d 1198, 1199 (1978). Present counsel later became involved in the case, and, in November 1980, habeas corpus proceedings were begun on behalf of the plaintiff.

The Superior Court (Dalianis, J.) considered the evidence presented by the plaintiff in support of his allegation that he was incompetent to plead guilty. She concluded that because the weight of the evidence presented indicated that the plaintiff was, at the time of his guilty plea, capable of consulting with his lawyer in a rational manner and understood the proceedings against him, the plaintiff had not met his burden of proving by a preponderance of the evidence that he was incompetent to plead guilty.

Review of the transcript of the habeas corpus proceeding indicates that the trial court employed the correct standard in assessing whether the plaintiff was competent to plead guilty. The standard for assessing competency to plead guilty is the same as that for assessing competency to stand trial. See Allard v. Helgemoe, 572 F.2d 1, 3, cert. denied, 439 U.S. 858, 99 S.Ct. 175, 58 L.Ed.2d 166 (1978). That test is: "whether (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (1960); Allard v. Helgemoe, 572 F.2d at 3; see United States ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (2d Cir.) cert. denied, 408 U.S. 927, 92 S.Ct. 2512, 33 L.Ed.2d 340 (1972). A plaintiff in a habeas corpus proceeding must prove by a preponderance of the evidence that he did not meet this test of competency at the time of his guilty plea. Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir. 1978); see ABA Standards of Criminal Justice, Post-conviction Remedies, std. 22-4.6(d) (Approved Draft 2d Ed. 1980).

The plaintiff argues that the trial court erred in finding that he had not met his burden of proving that he was incompetent to plead guilty. The plaintiff claims that the court's finding was clearly against the weight of the evidence presented by the plaintiff concerning his age and psychological disabilities.

The weight to be given testimony depends on the credibility of the witnesses, and the credibility of witnesses is for the trial court to determine. State v. Hardy, 120 N.H. 552, 554, 419 A.2d 398, 400 (1980). The plaintiff presented two witnesses: an expert who testified concerning his alleged psychological disabilities had at the time of his plea, and an attorney who had represented the plaintiff for the first time after the plea and had concluded that the plaintiff did not understand the nature of the criminal proceedings against him.

The trial court, however, in reaching its decision, elected to rely on the testimony of three attorneys who had either represented or spoken with the plaintiff before or at the time he entered his guilty plea. They testified that the plaintiff "appreciated the grave nature of the charge against him and the severity of the consequences he faces upon his conviction and that he was able to assist his attorney in his defense and to comprehend the necessary elements of the crimes of first and second degree murder."

The court could have disbelieved any part of the testimony even if no evidence was introduced to rebut it. State v. Rullo, 120 N.H. 149, 152, 412 A.2d 1009, 1012 (1980); St. Pierre v. Vitek, 114 N.H. 766, 770, 330 A.2d 117, 119 (1974). The fact that some testimony was that of an expert did not compel a different conclusion. State v. Rullo, 120 N.H. at 152, 412 A.2d at 1012; State v. Hesse, 117 N.H. 329, 332, 373 A.2d 345, 347 (1977); St. Pierre v. Vitek, 114 N.H. at 770, 330 A.2d at 119. See also State v. Hudson, 119 N.H. 963, 966-67, 409 A.2d 1349, 1351 (1979). Because we cannot find that no reasonable person could have come to the same conclusion as to the weight to be given to the conflicting testimony in this case, we defer to the trial court. State v. Hardy, 120 N.H. at 554, 419 A.2d at 400; see 93 Clearing House Inc. v. Khoury, 120 N.H. 346, 350, 415 A.2d 671, 679 (1980).

The plaintiff argues next that the trial court erred when it denied his request to reopen the habeas corpus proceeding to present rebuttal evidence on the issue of his competency to plead guilty. After both sides had rested, the plaintiff moved to reopen the case to present prison records which would purportedly establish the number of times two of the attorneys who had represented him at different times had visited him at the State prison. The reason offered for presenting this additional evidence was to...