Tillinghast v. Howard, 1311-M

• Citation: 287 A.2d 749,109 R.I. 497
• Decision Date: 28 February 1972
• Docket Number: No. 1311-M,1311-M
• Parties: Gerald M. TILLINGHAST v. Francis A. HOWARD, Warden. P.
• Court: United States State Supreme Court of Rhode Island

Page 749

287 A.2d 749

109 R.I. 497

Gerald M. TILLINGHAST v. Francis A. HOWARD, Warden.

No. 1311-M.P.

Supreme Court of Rhode Island.

Feb. 28, 1972.

Samuel A. Olevson, Providence, amicus curiae, for petitioner

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for respondent.

OPINION

POWERS, Justice.

This is a petition for a writ of habeas corpus brought by an inmate of the Adult Correctional Institutions of which the respondent is warden.

The petitioner avers that on September 12, 1969, he pleaded nolo contendere to an indictment charging him with assault with a dangerous weapon. On October 8, 1969, he was sentenced to two years but the execution of said sentence was suspended and petitioner placed on probation as authorized by G.L.1956 (1969 Reenactment) § 12-19-8.

The petitioner further avers that he was presented to the Superior Court on May 18, 1970, and after a hearing by a justice of that court, was adjudged to be in violation of his probation, wherefore he was ordered to start serving the two year sentence previously imposed. With regard to that hearing, however, he averred that the Superior Court justice's decision was arbitrary in that it was not supported by any evidence from which it could be found that he had violated the terms of his probation.

The petition was filed pro se on February 15, 1971, and out of an abundance of concern for petitioner's rights, we, on February 23, 1971, directed respondent to show cause, if any, why the writ should not issue. Tillinghast v. Howard, R.I., 273 A.2d 675 (1971).

In his sworn show cause answer, respondent admitted that petitioner was in his custody; that such custody resulted from the issuance of a mittimus as averred by petitioner, but denied that the decision of the Superior Court justice, which resulted in the issuance of said mittimus, was arbitrary.

Both petitioner and respondent submitted memoranda of law. That of petitioner was filed with his petition while respondent's accompanied the show cause answer.

In his memorandum, petitioner relied on Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964), cert. denied, 379 U.S. 866, 85 S.Ct. 138, 13 L.Ed.2d 70, wherein this court stated inter alia that the underlying reasons for a revocation hearing is to determine whether the charge against the probationer might have been inspired by rumor or mistake, or even downright malice. He attributed controlling significance to that language because of his contention that an examination of the evidence adduced at his hearing would show that he was the victim of malice and mistake.

Replying, respondent's memoranda pointed out that petitioner had failed to support his averments by furnishing this court with a transcript of the hearing. He referred our attention to LaRoche v. Langlois, 102 R.I. 582, 232 A.2d 365 (1967), wherein this court held that it was petitioner's burden to prove the averments of his petition. Moreover, citing deMello v. Langlois, 94 R.I. 497, 182 A.2d 116 (1962) and 39 Am.Jur.2d § 28, at 198, respondent's memoranda challenged the appropriateness of habeas corpus as a vehicle for review of the revocation hearing.

Shortly after filing his answer and memorandum, respondent also filed a motion to dismiss the petition, together with an additional memorandum, which motion directed our attention to the authorities cited in his memoranda for the proposition that habeas corpus did not lie. In addition to the authorities thus referred to, respondent, in his motion to dismiss, directed our attention to Walker v. Langlois, 104 R.I. 274, 243 A.2d 733, n. 1 (1968), which states:

"When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to habeas corpus to put an end to the restraint."

An examination of deMello v. Langlois, supra, proved that case to be inapposite here. However, it being petitioner's position that he had a hearing but that error inhered therein, we concluded that along with Charest v. Howard, R.I., 273 A.2d 325 (1971), and State v. Plante, R.I., 273 A.2d 327 (1971), the petition should be heard on oral arguments and briefs. Consequently, on May 13, 1971, we ordered the writ to issue and directed the parties to discuss in their oral arguments and briefs, in addition to the other questions presented, the question of whether an application for a writ of habeas corpus or a bill of exceptions, is the proper procedure. Tillinghast v. Howard, R.I., 277 A.2d 137 (1971). ¹

As heretofore noted, the petition had been filed pro se. So, in the interest of petitioner, and as assistance to this court, in addition to that which could be counted upon from the Attorney General representing respondent, we appointed Samuel A. Olevson, Esquire, to orally argue and brief the questions presented. Tillinghast v. Howard, R.I., 278 A.2d 867 (1971).

Prior to the hearing on oral arguments and briefs, and in keeping with his burden, petitioner supplemented the papers in the case with a transcript of the revocation hearing held on May 18 and 19, 1970. An examination of that transcript is of course indispensable to these proceedings. Before doing so, however, we deem it desirable to set forth some of the principles against which the revocation hearing, as revealed by said transcript, must be tested. Commencing with the obvious, it is to be noted that suspending the execution of sentence, as well as deferring sentencing, are judicial functions which do not come up for consideration until all questions of guilt have been resolved against the accused. This is to say that when such function is exercised, it comes at a moment when the accused could be sentenced to the maximum penalty provided for the offense of which the accused stands convicted.

Moreover, they are functions to which the convicted accused has no recourse as a matter of right. Rather, they are acts of grace, Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935); Walker v. Langlois, supra, Harris v. Langlois, supra, whereby the convicted accused retains his liberty, conditioned however on such probationary terms as the court may impose.

Indeed, it is for the purpose of giving a convicted accused the opportunity of rehabilitation that he retains his liberty and is placed on probation. Shaw v. Henderson, 303 F.Supp. 183 (D.C.1969), Powers v. Langlois, 90 R.I. 45, 153 A.2d 535 (1959). When, however, there exists reason to believe that one at liberty on probation has not complied with the terms of that probation, it is within the discretion of the court to impose sentence and order that it be served if the probationer is on a deferred sentence, or vacate the suspension of execution of a sentence previously imposed. Powers v. Langlois, supra and Walker v. Langlois, supra.

This is not to say though that probation may be revoked arbitrarily or capriciously. Broccoli v. Kindelan, 80 R.I. 436, 98 A.2d 67 (1952). There must be a hearing at which petitioner is entitled to be represented by counsel, present witnesses, and question his accusers. O'Neill v. Sharkey, R.I., 268 A.2d 720 (1970). ²

But he is not entitled to the rejection of evidence on the grounds that it is hearsay as would be the case at trial. Walker v. Langlois, supra. Neither is he entitled to have the accusation that he is in violation of the terms of his probation, established beyond a reasonable doubt. United States v. Chambers, 429 F.2d 410 (3rd Cir. 1970). It suffices if from the factual material, even though hearsay, it is reasonable to believe that the probationer has failed to comply with any of the terms of his probation. Broccoli v. Kindelan, supra. In short, if such factual material is marshalled against him, it is up to the probationer to explain it away or run the risk of having his probation revoked. Escoe v. Zerbst, supra and Harris v. Langlois, supra. supra.

It is in light of these settled principles then that we review the revocation hearing of which petitioner here complains. So doing, we look to the transcript thereof for the purpose of determining whether the revocation of probation was arbitrary.

The transcript establishes that at or about five p.m. on April 29, 1970, one Scott Prescott went to the Providence police station to complain that he had been robbed by petitioner, about a half-hour earlier. The incident, according to Prescott's statement to the police, took place on Weybosset Street where Prescott was seated in a Volkswagen bus belonging to one Harold Brooks.

Prescott told the police that petitioner, leaning into the bus, held a gun to Prescott's head and said 'Let's take a ride.' Just before this, petitioner had asked Prescott If he had any money and hen Prescott if he had any money and when Prescott had said 'If I find any on you, you are dead.'

Frightened by the gun, Prescott gave petitioner $75 which the latter stated he could have back if later that night Prescott supplied petitioner with 'five ounces of grass.'

Continuing with his statement to the police, Prescott related how petitioner suggested meeting at 9 o'clock that night at the corner of Elmwood Avenue and Burnett Street in Providence. Asked by the police if he were willing, Prescott agreed to be at the stated intersection and assist the police in a 'stake out.' Prescott also agreed to return to the station at 8 o'clock that evening for instructions.

The transcript establishes that Prescott, accompanied on this occasion by Brooks, returned to the station at 8 o'clock as agreed, and left with Brooks and four police officers to go to the rendezvous.

When they arrived at the stated intersection, Prescott and Brooks sat in the latter's parked Volkswagen bus while the four officers took up places whence they could keep the Volkswagen under surveillance.

The petitioner, accompanied by another man, arrived on...