State v. Freeman

351 A.2d 824, 115 R.I. 523, 1976 R.I. LEXIS 1557

• Court: Supreme Court of Rhode Island
• Decided: January 14, 1976
• Docket: 74-63-C. A
• Status: Published

Opinions

Doris, J.

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 26, 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 of 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 a 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, 322 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. 1463, 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 is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U. S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

The Superior Court justice in receiving the guilty pleas had been careful and thorough in questioning defendants in order to determine that their guilty pleas were entered into knowingly and voluntarily.

Here, it is conceded that the pleas entered by the accused were based on the agreement of the prosecutor which the trial justice not only approved but in addition specifically made a commitment as to the sentence to be imposed. The record indicates that the Attorney General stated that he was bound by Santobello and consequently was prohibited from withdrawing his agreement. The Superior Court justice while conceding the position of the Attorney General to be correct nevertheless stated that the court was not bound by Santobello and proceeded to withdraw his commitment made in open court as to sentence on the pleas entered by defendants.

We first consider defendants’ argument that the case of Santobello v. New York, supra is controlling. The defendants contend that the Superior Court justice committed error when he withdrew his commitment as to sentence and that by such action the prosecutor in effect was allowed to breach his promise which he was prohibited from doing by Santobello. In that case the defendant, after negotiations with the prosecutor, withdrew his not guilty plea to two felony counts of gambling and pleaded guilty to lesser offenses on the prosecutor’s agreement to make no recommendation as to sentence.

Some months later, a new prosecutor, contrary to the agreement, recommended the maximum sentence of 1 year. The trial justice imposed a sentence of 1 year but noted that the action was not as a result of the recommendation by the District Attorney, but by his own assessment of the defendant’s prior criminal record and lack of rehabilitative potential. The United States Supreme Court held that the interests of justice and proper recognition of the prosecutor’s duties in relation to promises made in connection with plea bargaining require that the judgment be vacated, and that the case be remanded to the state courts for further consideration as to whether the circumstances require only that there be specific performance of the agreement on the plea, in which case the petitioner should be resentenced by a different judge, or whether in this view of the state court, circumstances require that the petitioner be granted the opportunity of withdrawing his plea. The Court further stated:

“* * * when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fullfilled.” Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

Here, it is apparent that there was not a breach of the prosecutor’s promise made in the plea bargaining agreement even though the record indicates that the Attorney General stated that the recommendation made by the prosecutor was without his approval, and also was not in keeping with the usual department procedures. However, it is clear that although not withdrawing the recommendation made by the prosecutor, the Attorney General repudiated in principle the recommendation of the prosecutor. It is equally clear that the action of the trial justice in refusing to enforce the plea bargain was as a result of his conclusion that the recommendation of the prosecutor was a mistake.³

In the circumstances of this case where the trial justice not only participated in the plea bargaining agreement but in addition stated in open court the sentence he would impose, we find no relevant difference between a situation where the prosecution fails to make a promised recommendation and where the trial justice fails to impose a promised sentence since in either case the promise clearly is part of the inducement or consideration for the plea of the accused and such promise must be fulfilled. Santobello v. New York, supra.

We conclude that in the circumstances the trial justice was bound by the rule in Santobello and therefore committed error in withdrawing his commitment as to sentence. We proceed now to consider the relief to which defendants are entitled.

As we have stated it is clear that the trial justice did not refuse to apply Santobello on the ground that he independently concluded that the proposed sentence would be unjust or inappropriate. Rather, he refused to specifically enforce the sentence to which he was committed as a result of the plea bargaining agreement because he concluded that the promise of the prosecutor was a mistake.

In Santobello, the Court has taken the position that if a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement, such a promise must be fulfilled. In remanding Santobello the Court stated:

“The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.” Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

' It is clear that the Court’s directive was not simply to reinstate the defendant’s plea of not guilty, but rather, the lower court was directed to explore whether or not specific performance was the more appropriate remedy.⁴

Here, the. agreement was reached after extensive plea bargaining between the prosecutor and defendants, and the trial justice after extended questioning of defendants regarding the voluntariness of their pleas committed himself to a sentence of from 2 to 3 years subject to the reception of a presentence report, and as stated earlier his withdrawal of the sentence was based on his concern for the Attorney General who stated that the agreement was made by the prosecutor without his approval and not in keeping with the usual standards of the department and and was therefore a. mistake.

It is true as stated by the state that there is no authority that due process requires the imposition of the remedy of specific performance where a plea bargain is breached by the state, but rather the available remedies are stated in the alternative either the withdrawal of the plea or enforcement of the plea bargain agreement.⁵

Under the peculiar circumstances of the instant case, we are satisfied that due process and the interests of justice will be fully served by a remand for sentence in accordance with the specific performance of the sentence to which the trial justice had committed himself in furtherance of the plea bargain agreement.

The defendants’ appeals are sustained, the judgment of conviction as to each defendant is vacated, the sentence imposed is set aside and the cause is remitted to the Superior Court with directions that sentence be imposed on each defendant in accordance with the commitment made as to sentence as a result of the plea bargaining agreement.

1 Statement of the Superior Court justice released on March 2, 1973:

“The cases of State v. Abbott and State v. Freeman have been the subject of considerable publicity during the past week. The Court has given these matters serious and constant consideration since the first story with reference to the cases appeared in the press in which story the Attorney General of this State was quoted to the effect that the representative of his department who handled the cases before the Court had made a mistake. After reading that article, the Court sent for the actual files from the Attorney General’s office and read in considerable detail the pertinent portions of those files. While it has been and will continue to be normally the position of this Court that it will accept the responsible recommendations of the Attorney General’s representative in the disposition of criminal cases, the situation in the instant cases is such as to cause this Court to give serious thought to what its position ought to be in the Abbott and Freeman matters.

“I have discussed the matters at length with Attorney General Israel and at the outset I would like to make it clear that I have had and I do have the utmost respect for the integrity of Attorney General Israel. Furthermore, I am convinced that the young man from his department who made the recommendation before me was not deliberately intending to mislead the Court in any manner whatsoever. I should also point out that Mr. Gladstone, who represented the defendants before me, conducted himself with the utmost propriety in our conversation with reference to this case in chambers in the presence of the member of the Attorney General’s office as he did in court when the pleas were actually entered.

“In discussing the matter with the Attorney General this morning he informed me that under a United States Supreme Court decision, Santobello v. New York, decided in December of 1971, it is his opinion that he is bound by the recommendation which his representative made in court. However, my reading of that case leads me to the very considered opinion that the Court is not so bound even assuming that the Attorney General is bound as indicated above. In my considered judgment this Court would not be acting in a responsible manner if it were to recognize the Attorney General’s position to the effect that the original recommendation of that department was a mistake and if the Court were to say it would ignore the mistake and make no change in its original indication as to sentence. Consequently, this Court has decided that on the 23rd day of March, when the cases come before me, I shall inform the defendants and their attorney of my position as indicated in this statement-; namely, that I shall withdraw the previous commitment I made as to sentencing -and I shall, of course, offer them the opportunity of withdrawing pleas of nolo and entering pleas of not guilty in order that the cases may be tried at some later date when there can be no question but that the defendants will receive a fair trial in every sense of the word.

“It should be understood, without equivocation, that the Court’s action in this matter should not and must not be construed by anyone as -an indication of the Court’s feeling as to the guilt or innocence of these defendants. Once the pleas of nolo are withdrawn from the record and pleas of not guilty are entered, these men, as do all defendants, stand before the Court and before the world protected by the presumption of innocence and it will then be the obligation of a jury to determine, in accordance with our system of justice, their guilt or their innocence.”

2 The reference was to Santobello v. New York, 404 U. S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), where it was held that when a plea rests in ¿ny significant degree on a promise or agreement -of the prosecutor, so that it can be said to be a part of the inducement nr consideration, such promise must be fulfilled even though the promise or agreement by the prosecutor may have been made through inadvertence or mistake.

3 Statement of Superior Court justice:

“In my considered judgment this Court would not be acting in a responsible manner if it were to recognize the Attorney General’s position to the effect that the original recommendation of that department was a mistake and if the court were to say it would ignore the mistake and make no change in its original indication as to sentence.”

4 In a significant concurring opinion in Santobello, Justice Douglas stated:

“Where the ‘plea bargain’ is not kept by the prosecutor, the sentence must be vacated and the state court will decide in the light of the circumstances of each case whether due process requires (a) that there be specific performance of the plea bargain or (b) that the defendant be given the option to go to trial on the original charges. One alternative may do justice in one case, and the other 'in a different case. In choosing a remedy, however, a court ought to accord a defendant’s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant, not of the State.” Santobello v. New York, 404 U. S. at 267, 92 S.Ct. at 501, 30 L.Ed.2d at 436.

5 Mosher v. LaVallee, 351 F.Supp. 1101 (S.D. N.Y. 1972), aff'd 491 F.2d 1346 (2d Cir. 1974), cert. denied, 416 U. S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); Cross v. State, 248 Ark. 553, 452 S.W.2d 854 (1970); Gutierrez v. Baker, 276 So.2d 470 (Fla. 1973); People v. Riebe, 40 Ill.2d 565, 241 N.E.2d 313 (1968); People v. Baker, 46 Mich. App. 495, 208 N.W.2d 220 (1973); People v. Eck, 39 Mich. App. 176, 197 N.W.2d 289 (1972).