# Appendix — Thoresen v. Maine > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0032%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 393 U.S. 854 ## Text "py APPENDIX A. -Memorandum of Points and Authorities i in <« F Support of Petition Herein. | William E. Thoresen, III, Retitioner, vs. State of _ Maine; Respondent, 3 \ 2 ee ear ere ’ : INTRODUCT ION | This vicuiiidind is instituted to vaeaté the plea of | spre guilty and larceny conviction ‘herein of September 21, ar 1959... | . ‘Said proceeding i is cuiniie pursuant to Title 14, Sec- . tion 5502, et'seq., M.R.S.A.; writ of coram nobis; writ in the. nature of coram nobis ; and the — equity ~~ powers of this court. Petitioner was arrested in Bar Harbor, Maine, on September 8, 1959 and. charged with larceny. hee On September 21, 1959 in Ellsworth, Maine, Pe- titioner waived prosecution by Indictment, a jury trial; and.was convicted, on a plea of guilty, of the crime charged in the Information, to-wit, larceny on Septem- . ber 7, 1959 of six pictures in the aggregate value of | ONE HUNDRED FIFTY. ($150.00) DOLLARS, at | Bar Harbor, Maine, the property of the Canadian Na- tional Railways. ; | - .Judge James Archibald, preding, ‘sentenced Peti- a tioner to the Men’s Réformatory at South Windham, County of Cumberland; ordered the confinement sus- ‘* pended, and placed’ Petitioner in custody of: the State Probation and Parole Board for a term of two years. Petitioner complied with the terms and conditions of _his probation, which probation was formally terminated —. at the September 1961 term of the Hancock Superior a5 * Court, per Justice T, E. DeLahanty. : o —2—- Il. FACTS AND ARGUMENT. Petitioner urges upon this Court as follows: That the petition.and affidavits in support thereof indicate, among other things, that Petitioner pled guilty herein on the rhistaken assumption that he was Pleading to a mi -type, minor offense. That he was not and is not guilty of the crime of larceriy of goods valued in excess of $100; that theré was no taking of goods of such value; that the value of tlie pictures taken- was approximately $26.00; that he did not knoW on September 21, 1959 that such was the value of the pictures taken; that lack of such knowl- edge was not due- to any negligerice on his part. Fur- ther, that%Petitioner’s ; plea of guilty herein was in- ‘duced by misrepresentation on the part of the County Attorney who mislead Petitioner and the Court into be- lieving that the true value of the ‘pictures taken was $150.00; that, said plea was further induced by and based on a migrepresentation by the County Attorney to Petitionef that he was to plead to and be convicted ~_ _ of a misdemeanor-type, minor offense; that the County ‘urged other persons, including the present wife and the father of Petitioner, to help the County Attorney gain the confidence of Petitioner. As part of the said’ misrepresentation the County Attorney requested Petitioner’s present wife, . who was also incarcerated with ‘Petitioner, to inform Petitioner that if Petitioner cooperated he would receive the same fate as Petitioners current wife.. Petitioner’s current wife was discharged without any conviction. __ Further, that the County Attorney visited Petitioner and his father in their hotel rooms on many ociasions, Petitioner's counsel although the County Attorney knew that Petitioner had counsel. Further, that - the County Attorriey intentionally undermined Petitioner’s faith in Petitioner’s attorney, thus interfering with Petitioner’s relationship with his counsel and .resulting .in Petitioner placing his faith in said County Attorney. Further, Petitioner labored under the mistake that the value of the pictures taken was $150.00; Petitioner was further mistaken as to the nature and - conse- quence of his plea, believing that he was pleading to a_ misdemeanor. Further, that’ Petitioner would not have so pled had he known the true facts. Petitioner’s counsel was so ineffective “—- incom- . petent as to amount to a deprivation of counsel. Pe- titioner’s counsel at no time attempted to nor did he _ sécure an appraisal of the pictures taken‘ to determine a their value or otherwise investigate the value of said pictures, nor did he interview any witnesses, including 5. any complaining witnesses, to determine the value there- ‘of. Petitioner’s counsel did not fully »nd properly ad- / vise Petitioner of his rights, the facts that. the -State Use _-must prove, and the implications, consequences. and . nature of the charge, plea and conviction. Said counsel permitted Petitioner. to plead guilty when‘ investigation _would have revealed the pictures were worth approx- _ imately $26.00. Further,. said counsel did not advise ~ Petitioner to seek a .new trial or to appeal. __ .There is an error 6f fact.not of record, which was . not' known to’ the accused arid to the court, and which c by the use of reasonable diligence could not have been known to the accused at the time of the trial and. which, if known, would have prevented’ the conviction. and Pee in ‘hin Ra cell, without pees “ —_—— — ee EE a © SR po Said error consists of the fact that the value of the pictures taken was approximately $26.00, whereas the Information charged and. the court assumed, that the _ Value was $150.00. Further, the crime Petitioner was convicted of was not committed. The value of the pictures did not ex- . ceed approximately $26.00, therefore, theft of proper- ty valued at $150.00 did not occur. Had this fact been known to the court the conviction ‘herein could - not - and would not have taken place. The conviction and sentence were in violation of the constitution of the United States and of Maine because ‘Of: ci - Ae 1. Counsel was so ineffective as to amount to a dep- rivation of counsel. in “violation of the due process © clauses of said constitutions ; ‘2. The misrepresentations on.the part of the County — “Attorney i in procuring the plea and conviction, as atore- _ mentioned ; : 3. The iaterfesenee by the County Attorney with Petitioner’s relationship with his counsel, which re- sulted’ from the County Attorney’s remarks and con- ferences with Petitioner and others without the _- ence of Petitioner’s counsel ; | 4. Petitioner was convicted of a crime which was not committed.- A plea of, guilty may be set adil and a conviction thereon vacated, via the remedy of coram nobis or the equivalent statutory remedy where the plea of guil- ty j_ Iwas procured unjustly or as the result of ignorance ¥ or excusable mistake of fact or by fraud, misrepresen- tation, trickery, deceit or duress. a — | That Petitioner only recently learned that he ‘had been, on said September 21, 1959, convicted of a crime punishable by imprisonment for more than ome year. Petitioner has also-only recently discovered that the value ‘of the pictures taken was approximately $26.00. The theft of property valued at less_ than $100.00 is Se by imprisonment for ‘not more than six months. That Petitioner, as a result of the aforementioned _ injustice, currently suffers the status of a convicted felon. As a result thereof Petitioner stands indicted under Title 15 U.S.C. Sec. 902(e) which, but. for the aforementioned conviction, could not have occurred. Because of this and other disabilities, Petitioner stands in need of Post-conviction redress. A pardon: would not suffice. aaa A. PROCEDURE Post-conviction remedies are available to Petitioner . herein, who has present need thereof. Dwyer v. State of Maine, 151 Me. 382,.120 A.2d 276 (1956) involved a post-conviction coram nobis pe- titign to strike a guilty plea entered some 18 years pre- viously, said plea having allegedly resulted from duress — and threats. The Supreme Court of Maine, holding that coram nobis was. available in this state,.said (151 Me. a): .” 7 “Tts object is . . . to correct the record in matters - of fact existing at the time of pronouncement of judgment in respect of which the court was un- "advised, whereas, had it been advised, the judg- ment would not have been pronounced.” | Pith Rie nr sn ine ai “ -” > : | The court declared that coram_ nobis had always been part of the law of Maine (392 Me. at 392-393) : “The writ of: error coram nobis was originally, and now is a part of the procedural law of Maine. Article X, Section 3 of the Constitution of Maine states: ‘All laws now in force in this state, and not repugnant to this constitution, shall remain, and be in force, until altered. or-repealed by the legislature, ‘or shall expire ~ their own limita- tion.’ E “In 1820, when Maine because a state, this article in the Constitution of Maine effectively incorporat- ed all ‘laws’ then.in force . . . A writ of error coram nobis was then recognized as a remedy. . . “Article 1, Section 6 of the Maine Constitution, however, guarantees a person against deprivation of life, liberty, property or privileges, except by - ‘judgment of his péers or the law of the land.’ The later phrase, it has often. been. recognized, incorporates the process and. proceedings of the commion law. State v. Learned, 47 Me. 426, 432; - Sacca v. Wentworth, 37 Me. 165,971. -“Thé writ of error coram ae is found in many early Maine cases which recognize this writ. “There is no stattite that prohibits, limits or pre- vents the use of the writ of error coram nobis. We find no case in Maine, and no case has been. called to our attention, where the writ of error ‘coram nobis has been petitioned for in Maine | - and has been denied on the ground that its use is not authorized by law. In fact, we know that writs of error coram nobis have been occasionally issued 3 —/— in the Superior Court in ‘recent. years, because of decisions in the .U. S. Supreme Court . . . An examination of the recent ‘cases in Maine, invef? 7 2% - ing writs of errorgshow that they were writs of error brought under the_statute,..and -the common----—~~ =~ law ‘writ of error coram nobis was not asked . | for.” : Thus, coram nobis has always been available as a post-conviction remedy in the State of Maine. The authoritieg indicate, as set forth hereinafter, that there have been no time, custody, confinement or pro- bation prerequisites for the invocation of the remedy “of coram nobis. : Longway v. State, 161 Me. .430, 213. A.2d 519 (1965), which referred to 14 M.R.S.A., Section 5502, and which has been cited for the proposition that a prisoner must be in custody’in order to be eligible for habeas corpus, does not preclude the petition herein. Longway is distinguishable,- and otherwise not con- trolling herein, as set forth hereinafter. Firstly, the decisién hey Longway was based on ai. _tertative grounds. The court determined that irrespec- tive.of any procedural difficulties, the petitioner therein was not’.entitled to relief. Said the court (161 Me. at 433): ~ “We are’satisfied that were this case before.t us on: its ‘merits the result would be the same. The peti- tioner was represented by competent counsel in both trials and the issues clearly presented and - adjudicated. at ° . Secondly, the writ dicenel and applied in bee. way was that of habeas corpus (See Petitioner’s Brief — s—- . : (Longway), Page 2). The declaration of the court that habeas corpus is not available when a sentence is sétved, has rio application, therefore, ‘to coram nobis. As indicated hereinaftér, all the cases cited in Long- J way relate to the remedy of habeas corpus,.or Sec- --tion 2255 of the United States Code, which is the equivalent thereof.. Habeas corpus traditionally was » available only to a prisioner detained i in custody. Thus the cases cited in Longway are distinguishable, as fol- lows: McNally v. Hill, a 1934 habeas.corpus case, quotes the Federal Statute ‘as expressly requiring custody and -refers to the history of habeas corpus as the remedy . ' to determine the legality of: the restraint. Likewise, ex parte Baez (an 1899 habeas corpus case), and Weber v. Squier, which was a mere per curiam de- cision denying certiorari: (see decision in the court be- low, 124 F.2d 618-(1941)). Similarly, Tornello v. -_ Hudspeth (per curiam habeas. corpus decision; see de- ; ‘-- » gision below, 128 F.2d 172 (1942)), and Zimmerman v. Walker (1943) (per curiam decision, habeas corpus; see decision below 132 F.2d 172. (1942)). Likewise - U. S. v. Brest, a 1959: case, involved habeas corpus and USC Section 2255; Heflin v. U.S., was likewise a habeas .corpus case, although it would allow relief under Federal Rule 35. Perry v. U.S. involved Section 2255, and Buckner .v. cameos is a 1939 habeas cor- pus case. In Sanders v.U.S., 373 U. S. 1, 14, the court said: As we said’ just last Term, ‘it conclusively ap- - pears from-the historic context in which Set. 2255 ° was enacted that the legislation was intended sim- ply to provide in the sentencing court a remedy exactly commensurate with that which had a4 é] N i pias —p— viously been available by habeas corpus in the court of the district where the prisoner was con- fined.’ Hill v. United’ States, 368 U.S. 424, 427.” A Note, 694 Yale L.J. 786, 789 states : : | “Thus, the modern habeas writ and the motion under Section 2255 are substantive equivalents. * “In England, as in the United States, the chief _ use of habeas corpus has been to seek the release - of persons held in.actual, physical custody in prison or jail.” Jones v. Cuepingham, 371 U.S. 236, 238 (1962): - “Tf there was any single feature that characterized | ‘the writ of habeas corpus in both ifs early statu- tory and common-law forms, it, was the require- .ment that adult petitioners be subject to an imme- diate and confining restraint on their ability. 8 Oaks, Legal. History. in the High Ci ourt—Habeas Coveies, 64 Mich L. Rev. 451, 469 (1966). : | In United States v. Morgan, 346 U.S. 502, 98 L. ed. 248, 74 S. Ct. 247 (1954), the Supreme Court explicitly declared that, as to the requirement of present custody or detention, there is a distinction between the remedy of habeas corpus and that of coram nobis and ‘that the ctistody or detention requirement applies only to habeas corpus whereas in coram nobis there has been and is no requirement of custody or detention. In Morgan, petitioner, after having se ed his sen- tence for a federal offense, was convicted, =ryoxinte ‘ly 11 years later, by a New York court on a state charge and sentenced to.a longer term as a second offender because of the prior federal conviction. Petitioner then : ? i oe _ sought.a writ of error coram nobis to vacate his fed- eral conviction, which had been based on a guilty plea. The court held that the federal courts have the power, .. pursuant to a writ in the nature of ‘coram nobis, to va- _ cate a judgment of conviction after the full term of - "service. The court said (98 L.ed., 254-257): . “The writ of coram nobis was available at com- a 3 mon law to correct errors of fact. It was allowed without limitation of time for facts that affect. the ‘validity and regularity’. of the judgment, — was.used in both civil and criminal cases.” “The contention is made that Section 2255 of Title 28, USC, providing that a petitioner ‘in custody’ may at any time move ‘the court which imposed the sentence to. vacate it, if-‘in violation of the constitution or laws df the United States, should ‘be construed to cover the entire field of remedies _ in the nature of coram nobis in-federal courts. We’ see no compelling reason to reach that conclusion. : In United States v. Hayman, 342 U.S. 205, 219, _ 96 L.-ed. 232, 241, 72 S.Ct. 263, we stated the purpose of Section 2255 was ‘to meet practical difficulties’. in the administration of federal habeas corpus jurisdiction. We added: : ‘Nowliere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack - upon their convictions.’ We know of nothing in the legislative -history, that indicates a different con- clusion. We donot think that the enactment of . Section 2255 is a bar to this motion, and. we hold | that the District Court has power: to grant = a motion.” | one: |, “Although the term has been served, the visu of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may. be affected. As the power to remedy an invalid sen- i rend tence exists, we think; respondent is | entitled to. an opportunity to attempt to show that this” conviction was invalid.” (Emphasis added. ) ” Eli Frank, i in his Coram Nobis (Common Law—Fed- | eral—Statutory), (1953)\ ( 1960: Cumulative Supple- ; ment, 123-125) states, in discussing Morgan: : | “Thus ‘any indecision in. the federal courts, as to _ the. availability of the Writ (Coram -nobis); either ‘on the theory that it had beefl abolished by mod- { _”~. ern motion practice or superseded by 28 U.S.C. | aif ‘Section 2255, has been dissolved and the writ so , be entertained ‘to achieve justice.’ | * ~ “The proper remedy to pursue in proceedings to: vacate a criminal convictién is ‘now evident. Where © | a defendant is not in custody by virtue of the con- viction being assailed, coram nobis is applicable; where he is in-ctistody thereunder, the proceed- ings should be denominated as one under 28 U.S.C. Section 2255.” : Longway contains no reference to Morgan. Nor was Morgan cited in either of the Briefs submitted to the Court. Petitioner in Longway proceeded under ha- beas corpus because at the time of the petition he was in custody (see Brief for petitioner, Maine Su- . er he _ preme Judicial Court, p. 2). He was discharged during . the habeas corpus proceedings but before October 19, © ‘ 1965, the date of the Court’s opinion. Therein lies the explanation why counsel for Petitioner in Longway a = + @ ~ : i ” proiedell via lidbeas envle (which traditionally re- quired detention) ; his failure to’ discuss, in his Brief,. ° the issue of whether or not detention was required for. __ redress; and his failure to refer to M ‘organ: The brief "of. the Attorney General likewise contains merely ‘a et cursory discussion of the detention requirement. Wee any In contfast to: habeas corpus, coram nobis has been traditionally available although the aim ie had been released from custody. - See; for example: | Lopes ¥. Kellegrew, 202 Ind. 397, 174 N.E. 808, 810 (1931) (Held, although the fine was paid and 30- day sentence served, it is “more consonant with jus- tice” to hold that the issue is not moot; “the right of reputation ‘was early recognized in Anglo-American “law, and the machinery of legal redress is at the dis- posal of. any person to vindicate his name.”) ‘Matter of Hogan v. Court of General Sessions, 296 -N.Y. 1, 68 N.E. 2d 849 (1946) amass more than 25 years after conviction): | . ©State v. Stodulski,: 298 S.w. 2d 420. (Mo., 1957) “€ following Morgan, held coram nobis. available although sentence had been served. Relief — for om mately 15 years after coriviction. ) - State v. Harrison, 299 S.W.2d 479 (Mo., 1957) ae (following Morgan; petition, apparently REPCORISHY 25 years after conviction.) ae - State: v. Huffman, 207 Or. 372, 297 P.2d 831 | (1956), wherein the court * Poe | the —— ( 297 P.2d at 840-841): | “It remains to be determined whether in this state : there i is a residuum of common-law power to grant relief froma conviction . . by means ofa motion — in the nature of corai dbid when the moving ‘defendant is not in custody and when therefore habeas corpip i - not + vailable. se | The court held that the court had the power, digits the fact that, as the decision indicated (297 P.2d at Tie defentant lias selbea Kis time and is at large, there. is no: showing that any - further govern- mental action against pin is pending or contem- plated.” wi. | “Certain of they échses cited stipra tend to indicate that - jurisdiction exists.even though defendant is - not in custody. Jurisdiction appears to exist . _ regardless of any effect which the relief biaipbil for would have upon any substantial right of the defendant. . .. (ibid. at 849).” © The court continues: (297 P. 2d 849): “Again, jurisdiction may be exercised in another ‘group ‘of cases in which defendant is no longer serving the sentence imposed, but his substantial ~. rights will be affected by the granting of the ré-.. lief sought. This group includes cases in which re- lief. if granted would favorably affect his Status as a recidivist under. statutes ’ imposing heavier sen- tences because of repeated convictions . . . filed in a case in which there was no other suitable remedy will receive consideration.” | It is noteworthy, moreover, that even in habeas cor- | pus cases the courts have been taking an increasingly | ‘liberal view re. the requirement of custody and deten- —14— In Jones v., Cunningham, 371 U.S. 236, 9 L. ed: 2d ‘285 (1963) the U. S. Supreme Court,’in, an habeas qcorbus case, held that a petitioner under parole had suf-. ficient status to seek habeas corpus. In Pollard v. U.S., 352. US. 354, wherein petitioner challenged his sentence after he had been released, the court, referring to Morgan, supra, and Feswisk v. U.S:, 329 v..211, stated that the “possibility of consequences collateral to the imposition of sentence is sufficiently. substantial. to justify our dealing with the merits. r (352 U.S., 358.) (Emphasis added) ae 4 Likewise noteworthy are the dissenting ieabastle of Chief. Justice Earl Warren ‘(joined in by three other Justices) in Parker v. Ellis, 362 U.S. 574, 4 L. ed. 2d 963 (1960) wherein the petitioner had ‘been re- leased. The Chief Justice, in this habeas corpus case, ' stated that there are no custody restrictions on the - grant of relief pursuant to the U.S.C. Section 2255, not does release from custody render the matter moot. He contended (362 U.S. at 593): “Conviction of .a felony imposes status upon a - person which not only makes him vulnerable to fu- ture sanctions through new civil disability statutes, . but «which also seriously ‘affects his’ reputation and economic opportunities.” (Emphasis added) The purpose of the post-conviction relief statute of the State of Maine (14 M.S.R.A. Sections 5502-5508 (Maine Laws 1963, C. 310, Sec. 1)) was not to abro- . gate or repeal any rights on remedies theretofore avail- able to persons convicted of crime. On the contrary, the aim of‘ the statute was to improve and simplify - procedures so as to enable persons convicted of crime _» to avoid traps and pitfalls. As expressed by the Re- porter of the Maine Rules of Criminal Procedure: , — - “Apparently, the post-conviction relief statute was | S _ designed to simplify fhe procedure and avoid the. . eos injustice which results when relief is denied be- cause the petition % given the wrong,hame or the » wrong type of relief is requested. This provision is . to make these proceedings as simple as possible and — assure that a petitioner is afforded the. relief to. P ' which he is entitled despite the formal inadequa-_ cies of his petition.” . Glassman, Maine Practice, | Vol. 3, Rules of Criminal Procedure ‘With:Commentaries, 282 x oe ie | 4g ’ pate: As the Reporter (Professor Harry Glassman) states _ in discussing the prior (1961) statute (Ibid. 286): “(The 1961 statute) . . . still preserved the dis- tinction between habeas corpus, coram nobis and writ of error so that a defendant seeking post- conviction relief had to determine which remedy was the appropriate vehicle for reaching the error. of which he complained. | | _“The adotpion of the post-conviction relief stat- ute in 1963 combining all three remedies in one proceeding denominated ‘Post Conviction Habeas Corpus’ relieved the Petitioner of this dilemma.” Even assuming a legislative intent to curtail coram . nobis remedies, it is submitted that there was no in- " tent that the statute’ operate retroactively, and affect rights already vested in 1963 and 1959. And if it were . intended to have anything but prospective effect, the legislation would probably be invalid as contravening - the ex post facto and due process clauses-of the Federal and Maine Constitutions. See Maine Constitution,-. Article 1 Section 11 (“the — . shall’ pass no bill of attairfier, ex post facto la % te e ie nt American Bir Association project on Minimum Standards For. Criminal Justice, Standards Relating .to Post-Conviction Remedies, recommended by the Ad- — visory Committee on Sentencing and Review, Tenta- -. tive Draft, p. 7 (Hon. Simon F. Sobeloff, Chairman) (1967), hereinafter referred to as “Standards”, has recommended that the availability of post-conviction re- lief should not be dependent on the applicant’s attacking ‘a sentence then beirig served or other present restraint. “Unlike habeas corpus, the writ of error coram nobis was not limited ‘by historical root to attacks upon present custody. Thus. coram “nobis could be used to challenge a sentence already completely served, where it formed part of the basis for a _ later multiple offender prosecution. See United States v. Morgan, 346 U.S. 502 (1954).” “Standards” at 41. The recommendation urges (“Standards” at 43-44): “Elimination of the custody condition would per- — mit persons convicted to challenge sentences of im- prisonment already completed . . . probation, or “suspended sentences. Frequently, this i is made nec- . essary by the application of multiple offender - laws which upgrade the authorized or prescribed sen- tence for a present offense on the strength of the defendant’s prior record. Parole consideration is likely to be influenced by the’ number of: previous’ 7 ‘ 17 ’ . or concurrent convictions. Civil disabilities of more or less impingement frequently continue after a sentence has been completed. The proposal here — made is merely that the availability of post-con- viction review of the validity of criminal judgments should not turn upon present. custody.” The Second Revised Uniform Post:Conviction Pro- cedure Act, approved by the National Conference of Commissioners on Uniform.State Laws and the Ameri- can Bar Association’s House of Delegates in August, 1966, provides a similar result. See Appendix B of — aforementioned “Standards”, pages 102-104. Said. Second Revised Act provides that “any ‘person ' who has been convicted of, -or sentenced for, a crime ~“ and who claims: — (4) that there exists evidence of material facts, not - previously presented and heard, that requires vacation | of the conviction or sentence in the interests of jus- tice; . , : (5) that his sentence has expired, his probation, parole, or conditional release unlawfully revoked, or he is: otherwise unlawfully held in custody or other re- straint; or a (6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available tinder any common law, stat- utory or other writ, motion, petition, were: or remedy ; may institute .. . a proceeding . . The Advisory Committee’s ‘comment states (“Stand- ards” 104): “The Second Revised Uniform Act does not con- tain any language restricting the remedy to per- sons actually serving the. challenged sentence. The original Uniform Act and the First Revision were limited to persons ‘incarcerated under sentence’ and ‘under sentence’ respectively. Presumably, the elimination of those restrictive words signify the - draftmen’s ‘intention to remove the custody pre- ‘ requisite for post-conviction relief, an anachronism that has caused considerable dif ficulty.” It is submitted that the only reason that the cus- tody requirement was contained in the original Uniform Post-Conviction Act of 1955 and similar legislation, is. that it was taken from the Federal Act, 28 U.S.C. Sec. 2255, which is based on habeas corpus. In Morgan, supra, the U. S. Supreme Court clearly indicated the distinction between coram nobis and habeas’ corpus. This. seems to have been lost on the Uniform com- missioners. See 9 B. U.L.A. 353. And see also,-61 Col. L.R. 698: “The Uniform Post- Costes P. S., which is in large part modeled on the federal remedy for fed- _ eral prisoners.” In Maine, post-conviction procedure may be brought . at any. time. Title 14 Section 5502 M.R.S:A. states: “A petition may be filed at any time after the criminal conviction is final.” 7 In Lyons v. Goldstein the court stated, 290 N.Y. 19, 47 N.E.2d at 428-79 (1943) : | “The inherent power of the court to set aside its judgment which was procured by fraud and mis- | representation cannot be doubted . . . no logical dis- tinction can be made between such power over judgments in civil cases and such power over: judg- ments in criminal cases.” ” awl — | —19— Se (In State v. Blackford Circuit Court, 229 Ind. 3, _ 95 N.E.2d 556 (1950) the Indiana Supreme Court held that the five-year statute of limitations on its coram nobis statue violated the due. process clause of the. United States Constitution). (The: decision indicates ~ the distinction between habeas corpus and coram no- bis). Petitioner has’ present need for the relief requested herein. A pardon would not be adequate. . “Executive: clemency does not eliminate. the fact of conviction; it merely results in ending further punishment . . . A pardon proceeds, not upon the theory of innocence, but implies guilt.” Lyons v. Goldstein, 290 N.Y. 19, 47 N. E.2d 430. 7 (Note the following non-coram nobis cases: Roby v. State, 96 Wis. 667, 71 N:W. 1046 (1897) involving a writ of error prosecuted while serving his sentence, but entire sentence served before decision; held _ not barred “from obtaining a reversal . . . thus removing the stigma which wrongly rests on his name and repu- tation.” (Emphasis supplied) Commonwealth v. Fleckner, 167 Mass. 13, 44 N: E. 1053 (1896): “We should be slow to suppose that the legislature meant to take away the right to undo the dis- grace and legal discredit of a conviction merely because 4 wrongly: convicted person has paid his fine or served his term. a . —2— > B. SUBSTANTIVE Plea Based on Misrepresentation A plea and conviction may be set aside in a post- conviction proceeding where the same is procured by fraud and misrepresentation, trickery or deceit. People v. Grgurevich, 315 P.2d 391, 153. C.A2d 806; dictum, where defendant relies -on promises, to which the prosecutor was’a party, as the basis of his plea such as probation or light sentence. In People v..Odlum, 205 P.2d'1106, 91 C.A.2d 761, it was held that coram nobis was available where pe- titioner’s attorney represented that the judge agreed to give him a lesser sentence and the judge and the dis- trict attorney innocently seemingly corroborated this and the plea was based on such representation. In Hogan v. Supreme Court of New York, 65 N.E. ‘2d 181, 295 N.Y. 92, the court stated that any. court has power to strike from its records judgments which, are void for fraud. . In New Mexico v. Ortiz, 427 P.2d 264 (1967) a plea of guilty was set aside and the judgment of convic- - tion vacated wheré a guilty plea had been induced by an unkept. promise of leniency (that the District At- torney would not proceed against the petitioner under the Habitual Criminal Act). Counsel advised Peti- tioner to plead guilty in accordance with ‘the agree- ment. At the arraignment, the defendant informed the court that no promise of “leniency had been made, that he understood that if-he pled guilty, he would be sentenced to the penitentiary for not less than one or more than five years. Cais ie ha cele en PNAS, tid i aniline”. The court, stating that: “Defendant’s statement does not conclusively de- termine that in fact no promises had been made. See.People of the State of New York v. Granello, 18 N.Y. 2d 823, 275 N.Y.S.2d 528, 222 N.E.2d 393 (1966).” declared Saad P.2d at 266; 77 N. M. at 755): “A judgment and sentence cannot stand if, based upon an involuntary plea of guilty induced by -an _unkept promise of leniency. A guilty plea induced by either promises or threats which deprive it of ¥ ‘ the character-of a voluntary act is void and. sub-— ject to collateral attack. Machibroda v. United. States, 368 U.S. .487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); DeLeon v. United States, 355 F.2d 286 (C.C.A. 5 1966); -Lattin v. Cox, 355 F.2d 397 (10th Cir. 1966); Ward v. Page, 238 F. Supp. 431° ¢D. Okla. 1965); McClure v. Voles, 233 F. Stipp. 923 (N.D. W.Va: 1964); Rob- erts v. People, Colo. 404 P.2d 848 (1965); People v. Sharp, 157 Cal. App. 2d 205, 320 P.2d 589. (1958); People v. Wadkins, 63 Cal.2d 110, 45 Cal. Rptr. 173, 403 P.2d 429, 432 (1965); Put- nam v. United States, 337 F.2d 313 (10th Cir. 1964) . . . To withhold the privilege of withdraw- ing a guilty plea in order to réassurme the position _ occupied prior to its entry would constitute a de- nial of due process of law.” -See Sutton v. State, 35 Okla. Crim, 263, 250 P. 930: (“the plea should be freely and voluntarily made by one competent ‘to know the consequences, and: ‘should not be induced by fear, persuasion, prom- -ises or ignorance.”) SANGER BAS lar 8S LED hs NRE ER i AER —22— is There is no due process of law where a guilty plea. is obtained by deception ‘or trickery #{ See Pa. ex rel. _ Herman v..Claudey, 350 U.S. 116) and: must be made intelligently and understandingly (see State v. Jones, 267 Minn. 421, 127.N.W.2d 153). ‘° In State v. Jones, 267 Minn, 421, 127 N.W.2d 153; 157, itis said: © | “.. a plea of guilty... should be received with caution . ... (S)hould not be entered where it is — made by one who has not been advised: of the na- — ture and element of the offense charged; nor should the plea be induced by misapprehension or ignorance. No plea should be accepted where it appear$ doubtful that it is made intelligently and understandably.” . 3 . In Mooney v. Holoban, 294 U.S. 103, 112-113 i _—s the Supreme Court indicated that: | . deliberate deception of court and jury by the presentation -of_testimony known to be perjured va- cates due process “and the state is required to af- ford corrective judicial process,” -citing Frank v. Mangum, 237 U.S. 309,. 335 and Moote v. Demp- sey, 261 U.S. 86. “f See People v. Picciotti, 151 N.E.2d 191, 4 N.V.2d 340, 174 N,Y.S.2d 32, in which it was held that a pe- . titioner was entitled to a coram nobis hearing where petitioner claimed his plea of guilty was based on the District Attorney’s threats that otherwise old indict- ments would be brought on for trial. See. Peotle v. Goldstein, 152 N.Y. S.2d 320, .1 A.D. - 2d 1044, wherein it was held that a plea of guilty induced by undue pressure (that if he did not plead his co-defendants would: “burn’”) and because the judge promised to give him a minimum sentence but actually gave ‘him a longer term. ‘See Lyons v. Goldstein, 290 N.Y. 19, 47 ND 2d aa «425, 428-29 (1943) on the “inherent power of a court” to set aside its judgment, criminal or civil, which was procured’by fraud and misrepresentation. in People v. Wasnick, 162 N'Y.S, 2d 730*(1957) defendant pleaded guilty to robbery in 1940 and was - sentehced to 15-30 years. While on parole: he was | again convicted as a second offender and sentenced . to 15-25 years. The application in the nature of a writ of ‘coram nobis, to vacate the judgment of conviction of 1940 “upon the ground that he pleaded guilty to rob- bery in the first degree, unarmed, in reliance upon a promise by the court that he would receive a: sentence of not more than 10-20 years and that the promise was not kept.” : The court, stating that defendant should be given the right to withdraw his plea, cited People v. Farina, 2 App. Diy. 2d. 776, 154 N.Y.S.2d 501, 502, affirmed 2.N.Y.2d 454, 141 N. E:2d 589, wherem defendant applied. via ‘writ in the nature of coram nobis to with- ‘draw his guilty. plea on. the ground that he was in- duced to enter a plea of guilty on the promise of the court to. sentence him to a 10-20 year term, -that he - relied on the ‘promise and was deceived by the court’s. failure to keep the promise. The court held that: , “While we do not imply that appellant was tricked - _ into entering a plea of guilty, or that the prom- - ise miade at the time of the entry of. that plea - was consciously violated, the result, insofar as ap- pellant is concerned, was the same. Such a ‘result, —_— elitliay caused by inadvertence or désign, 1s m- - consistent with due process of law; and the convic- tion cannot stand.” (Emphasis. added) In People v. Butterfield, 37 C.A.2d 140, 99 P.2a 310, petitioner claimed he was persuaded to plead guil- ty by the misrepresentation of a person who was acting as a stool pigeon for the officers to procure that result. ~ Said person promised.in the name of the District: At- - torney that if he pled guilty to murder ‘he would not be punished -for any offense higher than manslaughter. — In the coram nobis proceeding, the Court, directing that : petitioner be permitted to withdraw his plea of guilty and enter a plea of not guilty, stated | 432 €.A.2d at 147): : “(T)he fraud. . . exercised to induce the uu: tioner to plead silly. er tciacn lane deprived him of the right of trial by jury.” | in State’ v. Parker, = S.W. 2d 489, 493, the court said: | “A plea of guilty in open court is a solemn con- | fession of guilt, but like a ‘confession out of court, . should be received with caution. The plea should not be acceted by the court unless it is voluntarily and understandingly made. ‘If the defendant should _. be misled or. be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the ‘holding out of. hopes which.‘prove to be - false. or ill founded, he should be permitted to withdraw his plea. The law favors ¢ a trial on its - merits.’ ” 3 —, In Commonwealth v. Wood, 425 Pa: 612, 230 A2d 729 (1967), the court, in a post-conviction proceeding, $s od / —25— ordered a hearing for the purpose of determining wheth-_ - er petitioner’s guilty plea was knowingly and under- | standingly entered. The petition’ was ‘based on the claim _ that the guilty plea was entered solely because a state — official promised -that if petitioner would plead guilty _ he would be convicted only ,of receiving stolen goods, »\not | burglary, and would be committed to a state hos- — Ps rather than prison. The court stated that “Peti--——— tioner’s allegations, if true, would invalidate the guilty — ~ plea, Commonwealth ex rel. West v. oe 423 Pa. 1,: 222 A.2d 918 (1966).” | _In Dwyer v, Maine, 151 Me. 382, 396, 120 ‘A.2d- ‘ 276 (1956) the court held that a writ eferror coram © nobis would issue’ where the issue involved was: the voluntariness of petitioner’s. plea of guilty. The office _of coram nobis “is for the purpose of presenting facts which, if known’at the time of the trial, would have prevented the judgment from being rendered.” In Dwyer the court stated that (151 Me. at 388): .‘The United States Supreme Court -has pointed out many times: that there Should-be a post-convic- tion. procedure within the various states which will _be broad enough to cover all deprivatibns of con- _ stitutional: rights under the Federal Constitution, and it is well to note that a writ of ¢rror ‘coram ' - nobis: has been accepted by the United States -— Supreme Court as an appropriate post-conviction remedy. Hysler v. Florida, 315 U.S. —— 62 S.Ct. “ - 688, 86 Lied. 932.” | ‘See also, Nickels v. State, 86 Fla. 208, 98 So. 502 ( 1923), citing Pope v. State, (56 Fla. 81, 84, 47 So. 487, 488 (1908)-where it was held that a plea of - INUINOIN c acn sarea Sam —26— guilty “should be entirely voluntary by one competent to know the consequences, and should not be induced . by fear,’ misapprehension, persuasion, promisés, inad- vertence or ignorance.” R Ignorance or Mistake of Fact A plea and conviction may be set aside where the same results from ignorance or inexcusable mistake of fact. 3 | In People v. Breckenridge, 190 N.Y.2d 122, 16 Misc. 2d 704, the petitioner was convicted upon his plea of ' guilty of operating an unregistered motor vehicle. A State Trooper had mistakenly told Petitioner therein . that his ten-day permit had expired; in reliance thereon he decided to plead guilty. The court, in a coram nobis. writ, ordered the judgment of conviction vacated, ale aac eae . that the plea of guilty was improvident and was based upon misunderstanding and misrepre- sentation of the law. “Tt is immaterial that the authorities obviously in- ‘tended no misfepresentation.’ (People v. O'Neill, 7 A.D.2d.997, 998 . 7 ta “There is no implication that appellant was tricked into entering a plea of guilty by any design of fraud on the part of any of the public authorities, but. the result of the mistake of law was a plea of guilty. ‘Such a result, whether caused by inad- vertence or design, is inconsistent with due process of law, and the conviction cannot stand.’ (People v. Farina, 2 A.D.2d 776 (1956); People v. Sulli- van, 276 App. Div, 1087, 1088).” ~ The Alabama Supreme Court has stated that the function of coram nobis is to set aside a conviction “obtained by duress or fraud, or wlien ‘by some ex- cusable mistake or informance of the accused and with- out negligence on his part, he has been deprived of a defense which would have been used at the time or when facts have been concealed at the-trial which if known would have prevented a conviction and the accused cannot at the time present such matter in a motion for a ‘new trial, or appeal or other existing statutory proceeding.” Stevens v. State (1951) 36 Ala. App. 57, 52 So. 2d 169, 170. | See also Ex parte Powell, 102 S0.2d 923, 39 Ala. App. 423. In Application of Leonard, 111 N.Y.S.2d 85, 280 App. Div. 1, affirmed 106 N.E.2d 66, 303 N.Y. 99, in a coram nobis proceeding it was held that coram nobis would lie to set aside a plea induced by misrep- resentation or as a result of mistake of fact. Said the court (in this mistake of fact, not actual fraud) : “He was induced to enter a guilty plea solely upon the erroneous statements made by the district attorney.” In Commonwealth v. ‘Stokes, 232 A.2d 193, 195—Pa. —(1967) the court stated: “Moreover, ‘because of the serious conséquences which are attendant on the entry of a plea of guil- ty, strict adherence must not be had to the rule that knowledge of counsel is imputable ‘to the ac- cused.” Commonwealth ex rel. McKenna v. Cavell, 423 Pa. 387, 393, 224A.2d 616, 619 (1966). Thus : laid . SEE : . —28&— , ‘when challenging the validity of the plea, a peti- tioner is entitled to have the court consider his al- legations of fact which are dehors the record. See Machibroda v. United States, 368 U.S. 487, 82 .S.-Ct. 510, 7 L.Ed..2d 473 (1962); United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2nd Cir. 1963) ; Commonwealth ex rel. West v. ‘Myers, 423 Pa. 1, 222 A.2d 918 (1966).” See Nickels v. State, 86 Fla. 208, 98 So. 502 (1923), citing Pope v. State, 56 Fla. 81, 84, 47 So. 487, 488 (1908) where it was stated that a plea of guilty “should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence or “The important thing is . . . that the plea shall be a genuine one, by a defendant who is guilty; one who understands his situation, his rights, and © the consequences of the plea, and is neither de- ceived nor coerced.” ¢ Cortez v. United States, 337 F.2d 699 ar ’ Cir.) *