State v. Lanoue, 75-162-C
| Decision Date | 16 December 1976 |
| Docket Number | No. 75-162-C,75-162-C |
| Citation | 366 A.2d 1158,117 R.I. 342 |
| Parties | STATE v. Mitchell H. LANOUE. A. |
| Court | Rhode Island Supreme Court |
In late 1971 and early 1972 the defendant, Mitchell H. Lanoue, pleaded nolo contendere in the Superior Court to three indictments, each charging him with uttering and publishing a false, fraudulent, altered and counterfeited check. He received a 5-year suspended sentence and 5 years probation on each of two of those indictments and entered into a deferred sentence agreement with the Attorney General on the third. Thereafter, on November 16, 1973, he was indicted for conspiracy to commit robbery and on the basis of that indictment was presented to the Superior Court for allegedly violating the terms and conditions of his probation and the deferred sentence agreement. After a hearing, the trial justice declared the defendant a violator, revoked his probation, imposed concurrent sentences of 15 months each on the two charges on which sentence had previously been suspended and continued him on the deferred sentence agreement on the third charge. Subsequently, in March and April of 1975, the defendant moved to vacate the sentences and to reopen the violation hearing on the ground of newly discovered evidence. He appeals from the denial of those motions. 1
At the outset, we observe that until recently a petition for a writ of error coram nobis was the appropriate procedure for raising a claim such as defendant's. State v. Bettencourt, 112 R.I. 706, 711, 315 A.2d 53, 55 (1974); State v. Plante, 109 R.I. 371, 374 n.2, 285 A.2d 395, 396 n.2 (1972); Andrews v. Langlois, 96 R.I. 461, 463, 194 A.2d 674, 675 (1963). Use of that writ for that purpose was abolished in 1974, however, together with other common law and statutory postconviction remedies, when the Post Conviction Remedy Act (the Act), G.L.1956 (1969 Reenactment) ch. 9.1 of title 10, took effect. The Act now provides the exclusive remedy whereby '(a)ny person who has been * * * sentenced for * * * a violation of probationary or deferred sentence status * * *' may assert the claim '* * * that there exists evidence of material facts, not previously presented and heard, that requires vacation of the * * * sentence in the interest of justice * * *.' Section 10-9.1-1(a)(4). The substitution of one remedy for another, however, was a change in procedure only, not in substance, and the scope of review has in nowise been extended beyond the limits formerly permitted in coram nobis proceedings. Harris v. Commonwealth, 296 S.W.2d 700, 702 (Ky.1956); Rice v. Warden of Maryland Penitentiary, 221 Md. 604, 156 A.2d 632 (1959).
Because the Act became effective on September 1, 1974, defendant's motions of March and April 1975 clearly were governed by it and should have followed the procedure provided therein. 2 His failure to resort to the appropriate process, however, is not necessarily fatal. If it were and we were to deny and dismiss the appeal at this juncture on that procedural ground, defendant presumably would simply renew his challenge in the Superior Court by exercising his right under § 10-9.1-3 to file a properly labeled application 'at any time.' In these circumstances, rigid insistence on procedural formalisms would result in a waste of valuable judicial time and would needlessly prolong this litigation. 3 Consequently, we ignore defendant's failure to use the appropriate remedy, and we articulate his motions as if together they constitute an application for postconviction relief under the Act. See Walker v. Langlois, 104 R.I. 274, 275, 243 A.2d 733, 734 (1968). 4
Turning to the merits, we begin with the observation that defendant's burden of proof is the same under the new procedure as it was under the old. Thus, relief is still conditional upon a showing that the newly discovered evidence relied upon measures up at least to the standards that govern in the determination of a motion for a new trial on the same ground. Gross v. State, 242 Ark. 142, 145, 412 S.W.2d 279, 282 (1967); see Commonwealth v. Hawkins, 445 Pa. 279, 281 n.2, 284 A.2d 730, 731 n.2 (1971). Those standards, as set forth in State v. Carsetti, 111 R.I. 642, 650-51, 306 A.2d 166, 171 (1973), are as follows:
For us on review to determine whether the trial justice properly applied these standards necessarily requires a comparison of the evidence presented at the violation hearing with that proffered at the postconviction hearing. Without that comparison we obviously cannot ascertain, for example, whether the newly discovered evidence is merely cumulative or impeaching of that produced at the earlier hearing, or whether if presented at a new violation hearing it would probably alter the result. That comparison cannot be made in this case, however, because the record transmitted from the Superior Court does not include a transcript of the violation hearing. This omission makes effective appellate review impossible and therefore, without more, constitutes a sufficient basis for rejecting defendant's appeal.
Even were we to indulge defendant by accepting as a substitute for the missing transcript such of the trial justice's recollections of the violation hearing as are set forth in the postconviction hearing transcript, it would be of no assistance to him. That transcript discloses that at the violation hearing the state's principal witness, Donald Lawson, testified that he, defendant and one Anthony Fiore had planned a robbery during a conspiratorial meeting at Fiore's apartment. Notwithstanding defendant's testimony that he was not present at that meeting, the trial justice found Lawson to be a credible witness and therefore adjudged defendant a violator.
The newly discovered evidence proffered by defendant at the postconviction hearing was the testimony of Donald Houle, who was a coindictee with defendant on the charge of conspiracy to commit robbery. According to defendant's counsel, Houle was prepared to testify that he was present at a gathering at Fiore's apartment in October of 1973; that this was his only visit to that apartment; and that Lawson was there but defendant was not.
We are unable to perceive how Houle's proffered testimony aids defendant. True, it contradicts Lawson and corroborates defendant. Newly discovered evidence, however, if it is to qualify as a basis for recalling the revocation of probationary or...
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...post-conviction relief based upon newly discovered evidence, Fontaine v. State, 602 A.2d 521, 524 (R.I.1992); State v. Lanoue, 117 R.I. 342, 346, 366 A.2d 1158, 1160 (1976); we have affirmed the use of this test when the purported new evidence is a recantation by a material witness. See Fon......
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