State v. Freeman

• Decision Date: 14 January 1976
• Docket Number: No. 74-63-C,74-63-C
• Citation: 351 A.2d 824,115 R.I. 523
• Parties: STATE v. Richard E. FREEMAN and John M. Abbott. A.
• Court: Rhode Island Supreme Court

Page 824

351 A.2d 824

115 R.I. 523

STATE v. Richard E. FREEMAN and John M. Abbott.

No. 74-63-C.A.

Supreme Court of Rhode Island.

Jan. 14, 1976.

[115 R.I. 555] Julius C. Michaelson, Atty. Gen., John Austin Murphy, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Peter DiBiase, Asst. Public Defender, for defendants.

OPINION

DORIS, Justice.

These are separate indictments each charging the defendants John M. Abbott and Richard E. Freeman with the crime of rape. After trial in Superior Court, the jury returned a verdict of guilty as charged against each defendant. A judgment of conviction was thereafter entered by a Superior Court justice sentencing each defendant to a term of 10 years at the Adult Correctional Institutions. From the judgment of conviction, each defendant has appealed to this court.

The record indicates that on September 15, 1969, the grand jury returned indictments against defendants charging each with the crimes of rape, robbery, sodomy and kidnapping. On November 17, 1969, defendants were arraigned in Superior Court and after entering a plea of not guilty to each indictment were released on bail. Following defendants' arraignment, extensive plea bargaining activities were engaged in by defendants' counsel and members of the staff of the Attorney General. It appears that during this period defendants' counsel was attempting to convince the Attorney General that a sentence of less than jail should be recommended in the event that defendants would enter a plea to each indictment. No agreement was reached in this regard.

The cases were reached for trial before a Superior Court justice on Friday, February 23, 1973, and continued for trial until Monday, February 26, 1973. Plea bargaining activities were continued over the ensuing weekend. On February 26, 1973, the prosecutor and defendants' counsel reached an agreement under the terms of which the prosecutor would reduce the charge of robbery against each defendant to a charge of larceny from the person and defendants would enter a plea of nolo to the amended indictment, and also a plea of nolo to the indictments charging rape, sodomy and kidnapping. The prosecutor further agreed to recommend to the court a sentence of two to three years on the amended indictment charging larceny from the person and to recommend to the court that a deferred or suspended sentence be imposed on the indictments charging rape, sodomy and kidnapping.

On February 26, 1973, defendants appeared before a Superior Court justice, and on motion of the prosecutor, the indictments charging defendants with the crime of robbery were amended to a charge of larceny from the person. The defendants thereupon entered a plea of nolo to each indictment. After exhaustive questioning of defendants by the Superior Court justice as to the voluntariness and the factual basis of these pleas and after apprising them of the legal ramifications of their action, he accepted their pleas of nolo to each indictment.

The Superior Court justice then stated to defendants as follows:

'The Court will accept the nolo pleas with the understanding that they cannot be withdrawn, this is a final act on your part. Now I am going to tell you this morning exactly, or almost exactly, what disposition I will make of these cases at the appropriate time. I want you to understand that there will be no withdrawal of the nolo plea allowed, the nolo pleas will stick. On the date to which these cases are going to be continued, and they will be continued to March 23, 1973, I am going to impose on the charge of larceny from the person to each of you a sentence of not less than two nor more than three years, that is an actual sentence. I don't know at this point just what the sentence will be but it will be between two and three years. It will depend to some extent on my study of the presentence report and the plea on your behalf by your attorney Mr. Gladstone. I am not going to ask you to make it now, Mr. Gladstone, because I think it would be more fitting if you make it at the time sentence is to be imposed. On the other charges, on the charge of abominable and detestable crime against nature, I am going to place you each on a seven-year suspended sentence with seven years probation. On the other two charges, rape and kidnapping, I am going to place you on deferred sentences. That means when you get out, when you finish serving your sentence, whether you are on parole or whatever, you will be on probation for five years. Do you understand all of that?'

The court continuing declared:

'Finally, I must say to both of you, I am going to keep my word and do on March 23 exactly what I told you I am going to do. The only thing that isn't definite here is the length of that sentence, it will be not less than two nor more than three years. All that is conditioned upon both of you behaving yourself between now and then. If you should get in any further difficulties, I will tell you now, you won't be able to withdraw your nolo plea but I will not feel bound to give that sentence that is a bargain with you, do you understand that?'

The cases were thereupon continued to March 23, 1973, for sentencing pending reception of a presentence report and defendants were continued on bail.

On the day following the entry of the nolo pleas by defendants and the commitment as to sentence by the Superior Court justice, criticism of the procedure appeared in newspaper articles and on television and radio programs. A statement was issued by the Attorney General to the effect that the recommendations made by the prosecutor were without his permission, were not in keeping with the established procedure of the department of the Attorney General and therefore constituted a mistake by the prosecutor. Thereafter, several conferences were held between defense counsel, the prosecutor and the Superior Court justice who had accepted the nolo pleas of defendants. On March 2, 1973, the Superior Court justice released a statement to the newspapers in which he stated that he would withdraw the commitment made as to sentencing of defendants on February 26, 1973. ¹ On March 23, 1973, the statement of the Superior Court justice to the press on March 2, 1973, was read into the record.

On March 23, 1973, the date set for sentencing of defendants, counsel for defendants argued that under the circumstances defendants had lost their presumption of innocence, that they could not be placed in the position of status quo as it existed before the entry of their nolo pleas and that they therefore would be deprived of a fair and impartial trial. Counsel for defendants then moved that the commitment made as to sentencing by the Superior Court justice on February 25, 1973, be specifically enforced. In the alternative, under protest, defendants' counsel requested that pleas of not guilty be entered on the record. The motion for specific performance or the commitment made as a result of the 'plea bargaining' was denied. The nolo pleas were ordered withdrawn and pleas of not guilty were entered as to each indictment for each defendant.

On March 30, 1973, in response to a request from the Superior Court justice, the state moved to enlarge the record and on April 9, 1973, the state's motion was granted. On that date, the Attorney General stated that the recommendations made by the prosecutor on February 26, 1973, at the time of the negotiated nolo pleas were not in accordance with department policies in similar cases and were not agreed to by the Attorney General but that in view of prevailing case law, ² the Attorney General felt bound by the recommendation made by a member of his staff. The Superior Court justice stated that assuming that the Attorney General was bound by the recommendation made by the prosecutor that under the circumstances the court was not so bound.

The defendants thereafter petitioned this court for a writ of certiorari to enforce the plea bargain commitment made in Superior Court on February 26, 1973. We denied defendants' petition on June 29, 1973. State v. Freeman, 111 R.I. 937, 307 A.2d 542 (1973).

In Superior Court, on September 10, 1973, defendants renewed their motions for specific performance of the plea bargain commitment. The renewal motions were denied by a second Superior Court justice, who on September 19, 1973, also denied defendants' motions to dismiss the indictments because of adverse pretrial publicity.

After trial in the Superior Court, the jury on October 26, 1973, returned a verdict of guilty against each defendant on the charge of rape and kidnapping and a verdict of not guilty against each defendant on the charge of larceny from the person and sodomy.

On January 8, 1974, defendants were each sentenced to term of 10 years at the Adult Correctional Institutions on the conviction for rape and sentence was deferred on the conviction for kidnapping. On January 24, 1974, notices of appeal were filed as to defendants' conviction for rape. The appeals were docketed in this court on March 14, 1974. On April 1, 1974, we remanded these cases to Superior Court for a hearing on defendants' motions for post-conviction bail which was denied by a Superior Court justice on April 10, 1974. On May 10, 1974, after hearing, we granted bail to each defendant pending determination of their appeals. State v. Abbott, 113 R.I. 430, 332 A.2d 33 (1974).

The cases are now before us on defendants' appeal from the judgments of conviction entered on the indictments charging rape.

The disposition of criminal charges by agreement between the prosecutor and the accused has become an essential part of the administration of criminal justice and is highly desirable for many reasons. See Brady v. United States, 397 U.S. 742, 751-52, 90 S.Ct. 1963, 25 L.Ed.2d 747 (1970). A plea to a criminal charge by a defendant and the acceptance of such a plea by the court must be accompanied by safeguards to insure the defendant what...