Pursuant to RI Gen L § 10-9-3 (2012) submitted on behalf of Victor Colebut

PETITION FOR WRIT OF HABEAS CORPUS

Victor Colebut (Petitioner) of Cranston, County of Providence, State of Rhode Island, has filed in this court a petition for habeas corpus, setting forth that the said Petitioner (Inmate #553197) is imprisoned and unjustly and unlawfully deprived of his personal liberty and held in custody at the Adult Correctional Institution, Intake Service Center in said county and State by Carol Dwyer, or some other person as keeper, the warden of our State prison. (Respondent)

That said Petitioner on, July 8, 2020, was indicted by the grand jury of the State of Rhode Island, said indictment charging him with the crime of murder; and that on, July 29, 2020, the said Petitioner pleaded not guilty to the indictment and was thereupon committed to jail without bail by order of the Superior Court; that said Petitioner has been confined in jail ever since, and that during the entire period aforesaid the said Petitioner was not tried or admitted to bail.

That in compliance with RI Gen. Laws § 12-13-7 the said Petitioner on July 29, 2020 demanded a Speedy Trial; a motion was filed on August 31, 2020. That said demand for trial and a Speedy Trial was denied the said Petitioner, both by the Superior Court and the Attorney General, and a trial was postponed beyond the statutory period provided for in RI Gen. Laws § 12-13-7. That the postponement of said trial beyond the aforesaid statutory period is a gross injustice to the said Petitioner.

RI Gen. Laws § 12-13-7 has reference to certain crimes, including treason against the State, murder, robbery, rape, arson and burglary, and is as follows: “Every person who shall be indicted for or charged by information with an offense for which bail may be denied pursuant to the provisions of R.I. Const., Art. I, Sec. IX, and shall be imprisoned under the indictment or information, shall be tried or bailed within six (6) months next after the time at which he or she shall plead to the indictment or information if he or she demands a trial, unless it shall appear to the court that some material witness in behalf of the state has been enticed away or is prevented from attending court by some unavoidable accident.”

It is claimed that said Petitioner, not having been admitted to bail and never having a bail hearing and having been deprived of his liberty for a period of more than six (6) months following his plea to the indictment, is now illegally held and is entitled to discharge, he having demanded a trial within the six months following his plea to the indictment and he not being further detained on the ground that some material witness in behalf of the State has been enticed away or is prevented from attending court by some unavoidable accident.

It appears from the record that the said Petitioner was arrested in his home without a warrant on February 17, 2020 by the Pawtucket Police who responded to the RI E911 medical-aid call that said Petitioner made; and subsequent to a false arrest he was charged on February 18, 2020 with violating a no contact order, simple assault and disorderly conduct; and that on March 4, 2020 the said Petitioner was presented as a violator and his bail was revoked for 90 days and he was remanded back to the Intake Service Center where he has been detained since.

It appears from the record that the said Petitioner was charged with an indictable offense, murder one, in District Court; and said Petitioner was presented as a violator a second time, although he was not physically presented before the court and a judge or notified of the new charge, on May 7, 2020; and said Petitioner’s re-admittance to bail hearing that was scheduled for May 18, 2020 was canceled by a Judge; and said Petitioner continued to be held without bail.
It appears from the record that on July 8, 2020, said Petitioner was indicted for a serious offense; murder, by the grand jury and on July 29, 2020, said Petitioner pleaded not guilty and was again committed without bail to the Adult Correctional Institution, Intake Service Center, where he has since remained without bail (or a bail hearing) or a trial. The six months mentioned in said RI Gen. Laws § 12-13-7 therefore expired on January 29, 2021.

Following the indictment, the case has never been assigned for trial; and it has been postponed “Pending Further Investigation” more than nineteen (19) times. The said Speedy Trial Motion for assignment of said Petitioner’s case for trial was filed on August 31, 2020, or more than seven weeks prior to the expiration of a period of six (6) months following his plea to the indictment in compliance with § 12-13-7.

The court naturally feels that a person indicted for so grave and repulsive a crime should not be permitted to go free without a trial if his trial could be secured according to law. The court, however, in disposing of the question before it, is constrained by and must consider the terms of the statue referred to and the intention of the legislature in its enactment.
The constitution provides that those accused of crime shall have a speedy trial and the statute in question seems to us to mean that any person accused of either of the crimes enumerated shall, if he demand a trial, be tried within six (6) months from the time that he pleads to the indictment unless in the meantime such person should be admitted to bail or unless some witness in behalf of the State should have been enticed away or prevented from attending court by unavoidable accident.

We think that said Petitioner’s demand for a prompt trial and motion for a Speedy Trial that his case might be assigned for trial was sufficient to constitute the demand required by the statute and that such demand gave to the State a sufficient time within which to place the said Petitioner on trial within the statutory period of six (6) months computed from the time of his pleading to the indictment.

We think that the Superior Court should have granted Petitioner’s motion to have the case assigned for trial, fixing the time therefor within the period of six (6) months, and that the Attorney General should have aided the court to the same end. It is true that the statute in question does not specifically state that in the event of no trial occurring within six months the accused person shall be discharged. In many of the states where statutes of this character have been enacted such statutes have provided in definite terms for the discharge of the defendant. In the enactment of the statute in question, it must be presumed that if the defendant was not placed on trial within six months, not having within that period been admitted to bail, the legislature intended that such lapse of time should operate to release the accused party from further imprisonment.

We cannot conclude that the legislature by its positive provision that “Every person who shall be indicted for either of said crimes and shall be imprisoned under the indictment shall be tried or bailed within six (6) months next after the time at which he shall plead to such indictment, if he demand a trial,” . . . intended that a person accused of crime, and imprisoned, should after the expiration of six (6) months be left in the same situation in reference to his liberty as he was before the expiration of that period.

This brings us to the consideration of the statute with a view to ascertaining whether or not there could have been in the contemplation of the legislature any other change or changes in the situation of the accused which were to ensue from the expiration of the statutory period of (6) six months within which a trial should be had, except his discharge.
We cannot find anything indicating any other intent and we cannot assume that nothing was intended. In substance, and in fact, the statute directs that no person shall be imprisoned without a trial for a period of more than six (6) months. As we cannot construe this statute or find in the language thereof any evidence of any other intention on the part of the legislature than that an accused person should not be deprived of his liberty for more than six (6) months without a trial, we, therefore, must conclude that said Petitioner, in view of such statute, cannot be further detained and that he is entitled to his discharge. See RI Gen. Laws § 12-13-7; In re Deslovers, 35 R.I. 248 – 253(1913)).

Respectfully submitted, on behalf of Victor Colebut