Wark v. State

• Decision Date: 03 June 1970
• Citation: 266 A.2d 62
• Parties: Burton A. WARK v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 62

266 A.2d 62

Burton A. WARK v. STATE of Maine et al.

Supreme Judicial Court of Maine.

June 3, 1970.

David A. Nichols, Camden, for plaintiff.

Garth K. Chandler, Asst. Atty. Gen., Augusta, for defendants.

Before WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

WEBBER, Justice.

On appeal from denial of post-conviction relief. In 1965, while represented by counsel, petitioner pleaded guilty to escape from the 'Maine State Prison Farm' and was sentenced therefor. He is now confined at the Prison in execution of that sentence and seeks release from that custody.

The indictment contained two phrases now challenged by petitioner-'while undergoing lawful imprisonment at the Maine State Prison Farm in Warren' and 'did * * * from and out of said Maine State Prison Farm escape and go at large.' Petitioner contends there is no such crime as escape from the 'Maine State Prison Farm.' 34 M.R.S.A. Sec. 751 in 1965 provided in part, 'An inmate who escapes from the Prison Farm (earlier referred to in the transfer provision as the 'State Prison Farm at South Warren') * * * shall be guilty of an escape under this Title and shall be punished accordingly.' The applicable section in Title 34 was Sec. 710 which by reference provided the penalty. ¹ There was no error in 1965 in alleging an escape from the 'Maine State Prison Farm in Warren.'

The indictment, in describing the basis of the 'lawful imprisonment' from which petitioner escaped, alleged inter alia that he had been sentenced by a 'Justice of the Aroostook County Superior Court.' The Justice below properly disposed of this alleged infirmity in the indictment by saying, 'The words unmistakably meant the Superior Court held in the Count of Aroostook. The precise wording is not material.'

Petitioner contends that the indictment charging escape failed to allege that a warrant for commitment to the State Prison had issued. There is no such requirement. The allegation describing the judgment which produces the lawful detention suffices.

Two inadvertent clerical errors were made in the written sentence, one as to the date thereof and the other as to the middle name of the petitioner appearing in the body of the sentence, the correct name having been used in the caption. The true fact in each case is made clear by the record. Post-conviction relief from custody will not be afforded upon a showing of mere harmless and non-prejudicial clerical errors.

Petitioner asserts the incompetence of his court appointed counsel. He seems to relate this charge to the voluntariness of his plea on the theory that if his counsel had more thoroughly investigated the legal issues, he would not have advised him to plead guilty. We have dealt with these legal issues above and, as already indicated, find nothing that would deter competent counsel from advising a plea of guilty. Petitioner had adequate opportunity to consult with his counsel. He knew himself to be guilty and tendered his plea voluntarily and understandingly. He does not now suggest any substantial factual or legal defense which was available and not pursued by his counsel. Counsel was aware of the underlying facts of the escape, one of which was that a prison guard had been assaulted during the episode. Understandably, then, the primary concern of both petitioner and his counsel was to obtain as lenient a sentence as possible under the circumstances. Counsel properly devoted his efforts to this end.

Moreover, even if the original sentence had been illegal, it would have been voidable but not void and could not be tested by escape. Collins v. State (1970) (Me.) 262 A.2d 443; see Beaulieu v. State (1965) 161 Me. 248, 211 A.2d 290. Counsel's advice to the petitioner to plead guilty reflected his appreciation of the applicability of this rule of law. As was said in Mayo v. State (1969) (Me.) 258 A.2d 269, 270, 'There was no constitutional deprivation in the failure of counsel to discuss with Petitioner these remote legal possibilities and Petitioner's plea of guilty was freely, voluntarily and understandingly given.' As to what constitutes the deprivation of the constitutional right to effective representation by counsel, see Bennett v. State (1965) 161 Me. 489, 214 A.2d 667. As to the relationship between advice of counsel and voluntariness of plea, see the very recent cases of Parker v. North Carolina (Opinion May 4, 1970) 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; McMann v. Richardson (Opinion May 4, 1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763.

Petitioner contends that he was denied due process of law and equal protection of the law in that he received a sentence longer than the maximum sentence which could have been imposed upon a female who escape from her place of incarceration while serving an identical State Prison sentence for an identical offense. Petitioner's argument is that under the statutes applicable on August 1, 1965, the day his escape occurred, a male prisoner escaping from the State Prison was punishable by imprisonment for 'any term of years,' whereas a female serving a State Prison sentence but confined pursuant to 34 M.R.S.A. Sec. 852 at the 'Reformatory for Women' would have been punishable for escape therefrom 'by additional imprisonment in said reformatory for not more than 11 months.' ² Assuming arguendo but without deciding that the female prisoner under these circumstances would have been purnishable under 34 M.R.S.A. Sec. 859, we approach the problem as to whether the disparity in maximum sentences violates petitioner's constitutional rights. The petitioner's sentence for escape was for a term of not less than six nor more than twelve years.

We have had no previous occasion to consider the precise issue. In Gosselin, Petr. (1945) 141 Me. 412, 44 A.2d 882, cert. den. Gosselin v. Kelly, 328 U.S. 817, 66 S.Ct. 982, 90 L.Ed. 1599, the equal protection issue was raised by a woman who complained that the maximum limit of an indeterminate sentence to the Reformatory for Women as for a misdemeanor was three years whereas the maximum limit for confinement at the Reformatory for Men under like circumstances was only two years. Our Court concluded that a legislative determination that a classification as between the sexes for purposes of 'reform' was neither unreasonable nor...