State v. Feng, 77-274-M

• Decision Date: 08 October 1980
• Docket Number: No. 77-274-M,77-274-M
• Parties: STATE v. F. David FENG. P.
• Court: Rhode Island Supreme Court

Page 1258

421 A.2d 1258

STATE v. F. David FENG.

No. 77-274-M.P.

Supreme Court of Rhode Island.

Oct. 8, 1980.

Dennis J. Roberts II, Atty. Gen., Alyssa L. Talanker, Sp. Asst. Atty. Gen., for plaintiff.

John Tramonti, Jr., Providence, for defendant.

OPINION

MURRAY, Justice.

The applicant F. David Feng appeals from denial of his application for postconviction relief, filed pursuant to G.L. 1956 (1969 Reenactment) § 10-9.1-1 through § 10-9.1-9, as enacted by P.L. 1974, ch. 220, § 3. He challenges his convictions, asserting, among other claims, that they rest on invalid pleas of nolo contendere. He requests this court to vacate the pleas and to reinstate his earlier pleas of not guilty.

In the spring of 1975, applicant Feng and his college roommate, Steven C. Root, sold 100 capsules of the controlled substance phendimetrazine to a federal undercover agent. At the time of the sale, Feng and Root agreed to procure large quantities of other drugs for the agent. The agent and an unnamed informant reported the sale and the negotiations for future sales to the Providence police department. Acting on that information, the department obtained a warrant to search the dormitory room shared by Feng and Root, and the search uncovered a variety of drugs in substantial quantities.

The state later indicted Feng and Root, charging them with four counts of violating chapter 28 of title 21 of the 1956 General Laws. ¹ In a separate indictment the state charged a third student, Randall L. Walters, of drug offenses unrelated to those of Feng and Root. After the Providence police arrested the three men, they engaged the same attorney for their defense. Feng, Root, and Walters each pleaded not guilty when arraigned in November 1975.

The attorney hired by the three students conducted discovery and also negotiated with the state to change their previous pleas of not guilty to nolo contendere. Counsel reached an agreement with the state that Feng and his codefendants accepted. They subsequently appeared before a Superior Court justice and sought to withdraw their pleas of not guilty. At the plea hearing, Feng, Root, and Walters each submitted an affidavit stating that he understood, and waived voluntarily, the rights inhering in a plea of not guilty. The trial justice questioned each defendant individually to determine whether each understood the affidavit's contents. The trial justice then accepted pleas from each defendant of nolo contendere to all counts of the indictments.

He later sentenced Feng and Root to one year in prison on the count of possession with intent to deliver a controlled substance. He deferred sentence on the remaining counts of their respective indictments. The trial justice ordered Walters incarcerated for one year for delivery of a controlled substance and deferred Walters' sentence, as he did with that of the other two men, on the remaining charges. He then stayed execution of each man's sentence for one year.

Prior to expiration of the stay, Feng became dissatisfied with the attorney who had represented him at the plea hearing. He retained new counsel who filed an application for postconviction relief. In his application, Feng attacked his convictions on several grounds. ² He presented his arguments to the same justice who had conducted the plea hearing. The justice denied Feng's application, finding that he had filed it in bad faith. In addition, the justice revoked Feng's deferred sentence on the charge of possession of a controlled substance and imposed a two-year sentence consecutive to Feng's one-year term.

Feng appealed separately to this court from the denial of his application for postconviction relief and from the imposition of the additional two-year sentence. Upon motion, the trial justice released Feng on bail pending appeal of the imposition of the additional sentence, but refused to grant a further stay of the original one-year sentence and ordered Feng committed to the Adult Correctional Institutions.

While his appeal from the denial of his application for postconviction relief was pending, Feng applied to this court for bail. He urged us to consider the implications of our observation in State v. Abbott, 117 R.I. 214, 220, 366 A.2d 1132, 1135 (1976) (Abbott II) that "(T)his court has never granted bail to an individual who has sought what for all intents and purposes is post conviction relief."

We decided to examine the question of bail pending review of an application for postconviction relief. The short length of Feng's prison term necessitated his release to avoid rendering the bail question moot. ³ We therefore issued a writ of habeas corpus to secure custody of Feng and then admitted him to bail. Feng v. Laurie, R.I., 377 A.2d 351 (1977).

I.

Although our state constitution confers no right to bail following a conviction, City of Warwick v. Robalewski, R.I., 385 A.2d 669 (1978); Quattrocchi v. Langlois, 100 R.I. 741, 219 A.2d 570 (1966), we have designated bail pending direct appeal as a matter in the trial court's sound discretion. Id. In State v. Abbott, 113 R.I. 430, 322 A.2d 33 (1974) (Abbott I), we set guidelines for the trial court to follow when it assesses applications for bail pending direct appeal. ⁴

Feng requested this court to set guidelines similar to those stated in Abbott I, that this court will follow when faced with a petition for bail of applicants who appeal from a denial of postconviction relief. We first dealt with the question of bail pending appeal of an application for postconviction relief in Abbott II. In Abbott II, the same defendants involved in Abbott I applied to this court pursuant to Rule 9 of the Supreme Court Rules for bail pending appeal of their convictions on remand. This court denied their application without explanation, which denial prompted them to seek habeas relief in the Federal District Court. It granted the relief requested but it stayed enforcement of the writ for ten days to allow this court to either grant bail or issue "a statement of findings of fact that (would) enable a reviewing court to determine whether or not such denial was arbitrary." Abbott v. Laurie, 422 F.Supp. 976, 981 (D.R.I.1976). We explained in Abbott II that the defendant's convictions rested on pleas of nolo contendere reinstated by this court in State v. Freeman, 115 R.I. 523, 351 A.2d 824 (1976). We "questioned the propriety of defendants' using appeals" ⁵ to attack their convictions and instead treated the matter as if the defendants appealed from a denial of an application for postconviction relief. Abbott II, 117 R.I. at 219, 366 A.2d at 1134. We observed that Rule 9, under which the defendants sought bail, did not empower this court to release them because we determined that it related only to "an appeal which follows a guilty verdict after trial." Abbott II, 117 R.I. at 218, 366 A.2d at 1134. Under those circumstances, we refused bail because we had "never granted bail to an individual who has sought what for all intents and purposes is post conviction relief." Id. at 220, 366 A.2d at 1135.

Although we have consistently followed that policy, see State v. Giorgi, R.I., 382 A.2d 535 (1978), and State v. Williams, R.I., 382 A.2d 536 (1978), our ruling in Abbott II does not necessarily signify that upon analysis of that practice we would be without power to grant bail pending review of an application for postconviction relief. Thus, our ruling in Abbott II does not bar exploration of sources other than Rule 9 for the power to grant bail to an applicant pending appellate review of an application for postconviction relief. Indeed, our power to promulgate and enforce Rule 9 is derived from our inherent judicial power as supplemented by G.L. 1956 (1969 Reenactment) § 8-6-2, as amended by P.L. 1975, ch. 222, § 1.

Although the Post-Conviction Remedy Act is silent with respect to bail, Feng asserts that the Legislature impliedly adopted the ABA Standards Relating to Post-Conviction Remedies (approved draft, 1968) in its enactment of the remedy. ⁶ He reasons syllogistically as follows: (1) The Second Revised Uniform Post-Conviction Procedure Act incorporates all of the ABA standards. (2) The Rhode Island Post Conviction Remedy Act is modeled on the Uniform Act. (3) The Rhode Island act therefore incorporates the ABA standards also because it is modeled on the Uniform Act.

We reject Feng's construction of the Rhode Island act on two grounds. First, our Legislature enacted the postconviction remedy in 1974. ⁷ It could have expressly adopted the ABA standard if it had so desired. The Legislature's failure to include ABA Standard 4.3(c) operates as an implicit rejection of the provision, rather than an implicit acceptance. We shall not interpret a statute to include a matter omitted unless the clear purpose of the legislation would fail without the implication. Coastal Finance Corp. v. Coastal Finance Corp. of North Providence, R.I., 387 A.2d 1373, 1378 (1978); New England Die Co. v. General Products Co., 92 R.I. 292, 298, 168 A.2d 150, 154 (1961). In enacting the postconviction remedy the Legislature sought to provide a scheme for collateral attack of final convictions. The legislation will not fail of its essential purpose if we do not infer a bail or recognizance provision. We therefore reject Feng's contention that the Legislature impliedly adopted ABA Standard 4.3(c).

Second, we need look no farther than Feng's major premise to reject his interpretation of the Rhode Island act. Initial approval of the Uniform Act by the ABA in 1966 does not mean that the Uniform Act incorporates all of the Standards Relating to Post-Conviction Remedies. Rather, the ABA supplemented its initial approval of the act with adoption of the standards in 1968. Moreover, the ABA report contains a comprehensive analysis of the distinctions between the ABA standards and the Uniform Act. See ABA Standards Relating to Post-Conviction Remedies, Appendix B. The ABA Advisory Committee...