Williams v. Com.

Citation216 N.E.2d 779,350 Mass. 732
PartiesRubin WILLIAMS v. COMMONWEALTH.
Decision Date17 May 1966
CourtUnited States State Supreme Judicial Court of Massachusetts

Anthony A. McManus (Ronald J. Chisholm, Winchester, with him), for petitioner.

Brian E. Concannon, Sp. Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is at petition for a writ or error wherein the petitioner seeks to have vacated certain sentences imposed upon him in the District Court. The matter came before the single justice who reserved and reported it without decision upon a statement of agreed facts. In his assignments of error, the petitioner claimed that he was deprived of certain rights guaranteed to him by the Declaration of Rights in the Massachusetts Constitution, and by the Sixth and Fourteenth Amendments of the United States Constitution, that he was not advised of his right to counsel at trial under Rule 10 of the General Rules, 347 Mass. 809, and that he was denied the opportunity to confront witnesses against him. The facts are as follow.

On December 17, 1962, the petitioner appeared in answer to three complaints in the Municipal Court of the Roxbury District charging him with assault and battery. He was represented by counsel. He pleaded not guilty to the complaints but was found guilty on each one. He was sentenced on each complaint to two and one-half years in the Suffolk County House of Correction, the sentences to be served consecutively. Execution of the sentences was suspended until December 17, 1967, and the petitioner was placed on probation until the same date. He was advised of, but did not exercise, his right of appeal.

On November 23, 1964, the petitioner appeared in the same court to answer to five complaints as follow: (a) unlawfully attaching license plates; (b) operating a motor vehicle without a license; (c) operating an uninspected motor vehicle; (d) oper ating an uninsured motor vehicle; and (e) operating an unregistered motor vehicle. Upon this occasion the petitioner had no counsel; he pleaded guilty to each of the complaints and was found guilty. The court filed the five complaints but revoked his probation on the 1962 convictions, resulting in his confinement for a total of seven and one-half years. The petitioner is currently serving those sentences.

1. The hearing in the Municipal Court of the Roxbury District on November 23, 1964, constituted both a trial on the 1964 complaints and a hearing on probation revocation. Kadish, The Advocate and the Expert--Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 804--805, 816, 833. See Williams v. People of State of New York, 337 U.S. 241, 246--251, 69 S.Ct. 1079, 93 L.Ed. 1337.

2. The 1964 proceedings relating to the five complaints of that year constituted a trial on charges some of which were sufficiently serious to have resulted in the confinement of the petitioner. G.L. c. 90, §§ 7A, 9, 10, 20, 23, 31, and 34J. In these proceedings the petitioner was entitled to be represented by counsel. Gideon v. Wainwright, 372 U.S. 335, 344--345, 83 S.Ct. 792, 9 L.Ed.2d 799. Palumbo v. State of New Jersey, 334 F.2d 524, 529 (3d Cir.). See Commonwealth v. O'Leary, 347 Mass. 387, 389--390, 198 N.E.2d 403; SUBILOSKY V. COMMONWEALTH, MASS. , 209 N.E.2D 316;A Hamilton v. State of Alabama, 368 U.S. 52, 54--55, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193; Escobedo v. State of Illinois, 378 U.S. 478, 486--487, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977. See also Rule 10 of the General Rules, as amended on June 29, 1964 (347 Mass. 809).

Under Rule 10, supra, and the United States Constitution, waiver of counsel will not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 514--516, 82 S.Ct. 884, 8 L.Ed.2d 70. United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 308--310 (2d Cir.). Palumbo v. State of New Jersey, 3 Cir., 334 F.2d 524, 533. People v. Dorado, 62 Cal.2d 338, 349--354, 42 Cal.Rptr. 169, 398 P.2d 361. Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 532--533, 204 A.2d 446. See Johnson v. Zerbst, 304 U.S. 458, 464--465, 58 S.Ct. 1019, 82 L.Ed. 1461; Moore v. State of Michigan, 335 U.S. 155, 161--162, 78 S.Ct. 191, 2 L.Ed.2d 167; Note, Right to Counsel at the Time of Sentence: New York's Forgotten Guarantee, 27 Brooklyn L.Rev. 110, 115--117. Here the record fails to reveal whether the petitioner was indigent. There is nothing to show whether the petitioner could have retained his own counsel and chose not to do so. There is nothing to indicate that the petitioner was informed of his right to have counsel, that he elected to proceed without counsel, or that he either waived counsel or refused to sign a waiver. The acceptance of his guilty plea was not in conformance with the requirements of Rule 10 of the General Rules, supra, and was error. The petitioner's plea of guilty on November 23, 1964, cannot be used against him in any respect. Commonwealth v. McCarthy, 348 Mass. 7, 13--14, 200 N.E.2d 264. Commonwealth v. Kleciak, Mass., 216 N.E.2d 417. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246. Escobedo v. State of Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977. Commonwealth ex rel. Johnson v. Maroney, 416 Pa. 451, 452--453, 206 A.2d 322.

3. We proceed to the problem of whether the proceedings of November 23, 1964, considered solely as a probation revocation hearing, required that the petitioner be afforded the opportunity of counsel under Rule 10 of the General Rules. This is a matter which has occupied the attention of many courts and authors in recent years. There are jurisdictions in which a 'probationer must be given an opportunity to retain counsel and to have such counsel present during revocation proceedings.' Note, Legal Aspects of Probation Revocation, 59 Col.L.Rev. 311, 328. This right is granted expressly or by implication by certain State statutes. Alaska Sts. § 33.05.070 (1962). Fla.Sts.Ann. § 948.06 (1965). Ga.Sts. § 27--2713 (Supp.1965). See Tenn.Code Ann. § 40--2907 (1955). Some courts have stated broad terms that due process requires at least a hearing before revoking a convicted defendant's grant of liberty, parole or probation. Fleenor v. Hammond, 116 F.2d 982, 986 (6th Cir.) (reversing D.C., 28 F.Supp. 625) (conditional pardon). Brill v. State, 159 Fla. 682, 684--685, 32 So.2d 607 (suspended sentence). Lester v. Foster, 207 Ga. 596, 598--599, 63 S.E.2d 402 (suspended sentence). Cross v. Huff, 208 Ga. 392, 398, 67 S.E.2d 124 (suspended sentence). People ex rel. Joyce v. Strassheim, 242 Ill. 359, 366--368, 90 N.E. 118 (parole). Murray v. Swenson, 196 Md. 222, 230--231, 76 A.2d 150 (conditional pardon). Hite v. State, 198 Md. 602, 605--606, 84 A.2d 899 (suspended sentence). State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 138--140, 54 N.W. 1065, 19 L.R.A. 783 (conditional pardon). Mason v. Cochran, 209 Miss. 163, 169--170, 46 So.2d 106 (suspended sentence). Ex parte Lucero, 23 N.M. 433, 436--439, 168 P. 713, L.R.A.1918C, 549 (suspended sentence). State v. Phillips, 185 N.C. 614, 620--622, 115 S.E. 893 (suspended sentence). State v. Renew, 136 S.C. 302, 304, 132 S.E. 613 (suspended sentence). State v. Zolantakis, 70 Utah 296, 304--305, 259 P. 1044, 54 A.L.R. 1463 (suspended sentence). State v. O'Neal, 147 Wash. 169, 171--173, 265 P. 175 (suspended sentence). See cases collected in Burns v. United States, 287 U.S. 216, 219--220, 53 S.Ct. 154, 77 L.Ed. 266. Other courts, however, have broadly stated that not even a hearing is guaranteed under the United States Constitution in either parole or probation procedures affecting the defendant's liberty following his conviction. Escoe v. Zerbst, 295 U.S. 490, 492--493, 55 S.Ct. 818, 79 L.Ed. 1566 (dictum) (probation). Bennett v. United States, 158 F.2d 412, 414--415 (8th Cir.), cert. den. 331 U.S. 822, 67 S.Ct. 1302, 91 L.Ed. 1838 (probation). People of United States ex rel. Harris v. Ragen, D.C., 81 F.Supp. 608, 609, affd. 177 F.2d 303, 304 (7th Cir.) (parole). Fuller v. State, 122 Ala. 32, 40--41, 26 So. 146, 45 L.R.A. 502 (executive parole). In re Levi, 39 Cal.2d 41, 44 (probation). Pagano v. Bechly, 211 Iowa, 1294, 1297--1298, 232 N.W. 798 (suspended sentence). In re Tabor, 173 Kan. 686, 689--691, 250 P.2d 793 (parole). Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612, 617, 126 S.W.2d 1056 (conditional pardon). People v. Dudley, 173 Mich. 389, 396--397, 138 N.W. 1044 (probation).

We note also that the right to counsel is currently recognized as extending to the time when the proceedings relative to a suspect have reached the accusatory stage. Escobedo v. State of Illinois, 378 U.S. 478, 490--491, 84 S.Ct. 1758, 12 L.Ed.2d 977; when he is arraigned, Hamilton v. State of Alabama, 368 U.S. 52, 54--55, 82 S.Ct. 157, 7 L.Ed.2d 114; at the preliminary hearing or any critical stage, White v. State of Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193; when he pleads, Moore v. State of Michigan, 355 U.S. 155, 165, 78 S.Ct. 191, 2 L.Ed.2d 167; throughout his trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; at his sentence, Townsend v. Burke, 334 U.S. 736, 740--741, 68 S.Ct. 1252, 92 L.Ed. 1690; and in proceedings on appeal generally, Douglas v. People of State of California, 372 U.S. 353, 355, 358, 83 S.Ct. 814, 9 L.Ed.2d 811. But see Kelley v. United States, 235 F.2d 44, 45 (4th Cir.); Welsh v. United States, 348 F.2d 885, 887 (6th Cir.); and Brown v. Warden, U. S. Penitentiary, 351 F.2d 564, 567--568 (7th Cir.), regarding counsel at probation revocation.

We need not rest our conclusions on this matter upon constitutional grounds. In MARTIN V. STATE BD. OF PAROLE, MASS. , 213 N.E.2D 925,B we rejected the argument that revocation of parole was a procedure which fell within the protection of the Fourteenth Amendment's due process clause, saying, 'For the...

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