Shorette v. State

• Decision Date: 07 June 1979
• Parties: Howard SHORETTE and Michael York v. STATE of Maine and Richard M. Oliver, Warden, Maine State Prison.
• Court: Maine Supreme Court

Page 450

402 A.2d 450

Howard SHORETTE and Michael York v. STATE of Maine and Richard M. Oliver, Warden, Maine State Prison.

Supreme Judicial Court of Maine.

June 7, 1979.

Solman, Page & Hunter by Robert H. Page, Caribou (orally), for plaintiffs.

Michael D. Seitzinger (orally), Charles K. Leadbetter, Asst. Attys. Gen., Augusta, for defendants.

Before McKUSICK, C. J., POMEROY, DELAHANTY, GODFREY and NICHOLS, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

The State appeals, pursuant to 14 M.R.S.A. § 5508 and Rule 35(b)(6), M.R.Crim.P., from the judgment entered in the respective post-conviction habeas corpus proceedings brought by the petitioners-appellees, Howard Shorette and Michael York, in the Superior Court (Aroostook County) following an adjudication on November 10, 1978 by a single Justice of the Supreme Judicial Court as follows:

"The guilty pleas entered by the petitioners are deemed to be void and the same are ORDERED stricken from the record. Petitioners are ORDERED returned forthwith to the Superior Court, there to be arraigned again on the indictments charging each with the crime of terrorizing."

For reasons to be explained in the course of this opinion, we deny the State's appeals.

I

Prior to reaching the merits of these appeals, we must confront a jurisdictional point in the case of Petitioner Shorette. The State's contention in the Superior Court respecting the matter of jurisdiction was confined to the argument that, even though the verification appended to Shorette's complaint seeking post-conviction habeas corpus relief tracked exactly the terminology suggested in Form 26 of the Appendix of Forms expressly declared by Rule 58, M.R.Crim.P. to be a sufficient verification format required by Rule 35(b)(3) relating to such proceedings, the conjoined petition and verification did not show that Shorette, the signatory of both the petition and verification, was administered the oath by, or made an affirmation before, a person duly authorized to administer oaths. It is true that no jurat was affixed to the verification as contemplated by Form 26 to which we have already referred.

On the other hand, in addition to the petition for habeas corpus relief dated May 25, 1978 and the undated verification, Shorette filed with the Superior Court a motion for appointment of counsel for reasons of indigency accompanied by an affidavit in support of his motion, both being properly signed by him and dated of even date with the original petition. This affidavit in pertinent part reads as follows:

"Howard Shorette being first duly sworn deposes and says:

1. I am the Petitioner in the above titled Action.

2. I believe I am entitled to the relief sought therein.

3. I have read and Know the contents of the petition and Believe the same to be true.

4. I have no assets of any type and no income of any type.

5. Because of my poverty I am unable to retain private counsel or give security therefor.

Dated: May 25th, 1978.

s/ Howard Shorette

S/ Howard Shorette, Petitioner Pro

S/ Se

Subscribed and sworn to before me this 25th day of May, 1978.

s/ Arthur T. Kiskila

S/ Notary Public

My Commission

Expires Mar. 20/80"

(Emphasis added)

The State's attack on the Court's jurisdiction over the habeas corpus proceeding was based on the fact that the verification of the petition, as distinguished from the affidavit in support of the motion for appointment of counsel, was undated and could have been executed prior to, and in connection with a petition other than, the present petition, and, therefore, could not be considered a proper verification of the petition, even in conjunction with the jurat accompanying the affidavit.

We are not impressed with the State's argument. All these separate pleadings (the petition, verification, motion for appointment of counsel and the affidavit in support thereof) clearly demonstrate by internal reference that they form parts of one single procedural package looking towards habeas corpus relief in connection with a previous judgment of conviction for the crime of terrorizing. Nevertheless, in view of the jurat's immediate apposition to the affidavit in support of the motion for appointment of counsel and not to the verification itself, we will proceed to resolve the jurisdictional issue, whether the affidavit in itself is a sufficient verification of the original post-conviction habeas corpus petition within the requirements of 14 M.R.S.A. § 5503, which mandates that

"(f)acts within the personal knowledge of the petitioner and the authenticity of all documents and exhibits included in or attached to the petition must be sworn to affirmatively as true and correct."

We note that Rule 35(b)(3) was intended to implement the statute by providing:

"The verification to a petition for writ of habeas corpus shall be subscribed and either sworn to or affirmed by the petitioner; shall reflect that the petitioner has read the petition, or that he is unable to read the English language, that the petition and verification have been read to him, and that he understands the same; and that all matters therein within his personal knowledge are true."

It is clear that the affidavit, properly subscribed and sworn to, bearing the same date as the habeas corpus petition, was making reference to the petition itself and not to the motion for appointment of counsel insofar as Shorette's statements therein to the following effect are concerned:

"1. I am the Petitioner in the above titled action.

"3. I have read and know the contents of the petition and believe the same to be true."

The question really is, whether, in the circumstances of the instant case, the statement made under oath by Shorette that "I have read and know the contents of the petition and believe the same to be true" is to swear affirmatively to the truth and correctness of facts within the personal knowledge of the affiant as required by 14 M.R.S.A. § 5503. We answer in the affirmative.

Initially, we concede that the sworn-to-affirmatively aspect of the verification of all matters within the personal knowledge of the affiant as mandated by 14 M.R.S.A. § 5503 and by Rule 35(b)(3), M.R.Crim.P. is jurisdictional and the Superior Court cannot entertain a petition for post-conviction habeas corpus relief which does not comply with such requirements. Higgins v. Robbins, Me., 265 A.2d 90 (1970); Holbrook v. State, 161 Me. 102, 208 A.2d 313 (1965).

Affidavits that pleadings or facts are true according to the best knowledge and belief of the affiant have been held fatally defective. Fogg v. Fogg, 31 Me. 302 (1850); Englebrecht v. Development Corporation for Evergreen Valley, Me., 361 A.2d 908 (1976). See also Donna v. City of Auburn, 148 Me. 356, 93 A.2d 484 (1952).

In this case, it is obvious beyond doubt that the facts asserted by the affiant in his petition for post conviction habeas corpus relief were all within his personal knowledge. They have reference to matters in which he participated personally or to events at which certain facts occurred or failed to take place while he was an active participant therein. Shorette's oath that he "believed the same to be true", if wilfully and corruptly false, would subject him to the penalties of perjury or false swearing under 17-A M.R.S.A., §§ 451 and 452. As pointed out in 70 C.J.S. Perjury § 5, at page 462, in order to constitute perjury or false swearing, the false statement must be one of fact, and not of opinion or belief; an honest but erroneous expression of opinion or belief will not support a charge of perjury or false swearing. However, the existence or nonexistence of an opinion or belief is, in itself, a matter of fact, and, if material, the false statement of opinion or belief may constitute such offense. See also 41 Am.Jur., Perjury, § 6, p. 6; Shook & Fletcher Supply Company v. City of Nashville, 47 Tenn.App. 339, 338 S.W.2d 237 (1960); State v. Sullivan, 24 N.J. 18, 130 A.2d 610, 66 A.L.R.2d 761, cert. denied, 355 U.S. 840, 78 S.Ct. 52, 2 L.Ed.2d 51 (1957); People v. Dixon, 99 Cal.App.2d 94, 96, 221 P.2d 198, 199 (1950).

The underlying purpose of the statutory requirement that the facts within the personal knowledge of a post-conviction habeas corpus petitioner must be sworn to affirmatively as true and correct is to insure the good faith of the petitioner in presenting non-frivolous claims, and, in relation to serious ones, to identify the issues, confine the evidence thereto and simplify the trial of the case, all in the interest of promoting judicial economy.

The instant affidavit-verification, wherein Shorette stated under oath that he Believed the factual allegations of his petition, which were all within his personal knowledge, to be true, was in substantial compliance with the requirements of 14 M.R.S.A. § 5503 and Rule 35(b)(3), M.R.Crim.P.

We note the dual structure embodied in the model verification form (form 26) of the Appendix of Forms. ² Even though the statute itself did not detail the specific contents of the verification, the drafters of the rules of criminal procedure visualized that petitions under the statute might contain two types of allegations: (1) those of facts which are within the petitioner's personal knowledge and (2) those of facts which he only knows from information imparted to him and which he believes to be true. The model form, in consistent implementation of the statute and rule, does provide a fitting verification for cases in which the petition partakes of both kinds of factual allegations. But where all the facts of the petition are obviously within the personal knowledge of the petitioner or are so stated to be, there is no need to use the exception clause "except such matters as are alleged on information and belief, and as to those matters he alleges that he believes them to be true."

The use of the expression that he "believed" the factual allegations of the petition to be true did not fatally depart in this case from...