State of Me. v. BURD

• Decision Date: 28 March 2011
• Docket Number: CRIMINAL ACTION DOCKET NO. CR-10-442
• Parties: STATE OF MAINE v. STEVEN J. BURD, JR.
• Court: Maine Supreme Court

STATE OF MAINE

v.STEVEN J. BURD, JR.

CRIMINAL ACTION DOCKET NO. CR-10-442

Supreme Judicial Court of Maine

DATED: March 28, 2011

ORDER ON MOTION TO STRIKE

Before the court is the defendant's motion to strike prior conviction. He stands charged by indictment with Criminal OUI under 29-A M.R.S. §2411(l-A)(B)(2), under which his OUI was charged as a Class C offense because he had two previous OUI offenses within a ten-year period.¹ On November 2, 2010, the defendant moved to strike his underlying February 19, 2003 district court conviction, Docket No. CR-03-305, on the ground that his guilty plea was not made knowingly and voluntarily, and that the plea was obtained in violation of his right to counsel. The defendant asserts that if the motion to strike is granted, only one prior OUI offense would stand, and the current Class C offense would be reduced to a Class D misdemeanor. The court held a hearing on the motion to strike on January 6, 2011, during which the defendant was represented by counsel.

The factual background at issue surrounds the defendant's February 19, 2003 district court guilty plea. This court was not provided a record of the plea or the colloquy associated with it, and at the hearing before this court, the parties indicated that no transcripts or audio records of such transcripts have been retained for this case. The written record of the Augusta District Court proceedings on February 19, 2003, indicates that the defendant initially entered a plea of not guilty, then changed his plea to guilty as part of a plea agreement. (Def.'s Mot. to Strike, Ex. 1.) It also indicates that the defendant's attorney was "afd Parker," an attorney for the day, although it does not indicate the extent of the discussion, if any, between the defendant and Attorney Parker prior to his entry of a plea of guilty.

The defendant asserts that this conviction must be stricken because it was obtained in violation of his constitutional right to counsel and to a jury trial, and that there is no evidence that his waiver of either right was knowing or voluntary. He cites State v. Black, KENSC-CR-09-022, a 2009 Superior Court decision by Justice Jabar, which ruled that absent clear evidence of a waiver of counsel, the court cannot assume that such a waiver occurred. The defendant also cites State v. Ouellette, 2006 ME 81, 901 A.2d 800, for the proposition that the presence of an "attorney for the day" is insufficient to satisfy the constitutional right to counsel; State v. Holmes provides his authority regarding the necessity of "affirmative steps reasonably designed to make each defendant himself aware of his individual right to a jury trial" in order to support a finding of waiver. Holmes, 2003 ME 42, ¶ 9, 818 A.2d 1054, 1057 (emphasis in original; quotation omitted).

The State countered at the hearing that an "uncounseled misdemeanor conviction, valid . . . because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction." Nichols v. United States, 511 U.S. 738, 748-49 (1994). It cites State v. Cook, 1998 ME 40, 706 A.2d 603, for the application of the Nichols rule to Maine, and State v. Maloney, 2001 ME 140, 785 A.2d 699, upholding Cook and Nichols in accepting a constitutional but uncounseled plea for the purposes of enhancing the level of a subsequent crime.

The defendant's assertions implicate not one but two constitutional rights: the right to counsel and the right to a jury trial. See State v. Cote, 2006 ME 128, ¶12, 909 A.2d 626, 628 (Alexander, J., concurring) ("The right to a jury trial in criminal prosecutions is a fundamental constitutional right. State v. Ouellette, 2006 ME 81, P11, 901 A.2d 800, 804; State v. Holmes, 2003 ME 42, P11, 818 A.2d 1054, 1057. The right to counsel in criminal prosecutions is likewise a fundamental constitutional right. State v. Watson, 2006 ME 80, P14, 900 A.2d 702, 708."). These rights may be waived, but in order to be effective, any waiver of constitutional rights must be knowing, intelligent, and voluntary. State v. Ouellette, 2006 ME 81,¶12, 901 A.2d 800, 804 (right to jury trial); State v. Watson, 2006 ME 80, ¶15, 900 A.2d 702, 708 (right to counsel). The Law Court recognizes the "uniquely legal dimension" of a finding of waiver of either constitutional right, and therefore applies "a bifurcated standard of review, reviewing any express or implicit factual findings for clear error, and the legal conclusion to be drawn from those facts denovo." Watson, 2006 ME 80, ¶31, 900 A.2d at 713 (quotations omitted); see also Ouellette, 2006 ME 81, ¶21, 901 A.2d at 807.

While the Law Court applies its bifurcated review to a finding of either type of waiver, a significant difference between the two rights is the burden of proof. As to the right to counsel, "in a collateral attack on an uncounseled conviction, it is the defendant's burden to prove that he did not competently and intelligently waive his right to the assistance of counsel." Iowa v. Tovar, 541 U.S. 77, 92 (2004). As to the right to a jury trial, necessarily waived by a guilty plea, however, following the United States Supreme Court's ruling in Boykin v. Alabama, 395 U.S. 238 (1969), Maine law has considered "that the State, in post-conviction proceedings, bear[s] the ultimate burden of establishing a total record which adequately shows in an affirmative manner subsidiary facts (over and above the fact that a formal guilty plea was tendered and accepted) constituting the plea as one voluntarily and understandingly made." Morgan v. State, 287 A.2d 592, 601 (Me. 1972).

An analysis of either form of waiver, as noted by the quotations assigning the burden of proof above, requires proof of facts—and the Law Court has repeatedly provided that the method of ascertaining those facts must be through post-conviction review proceedings, unless the record is clear enough to proceed based upon the record alone. See, e.g., State v. Huntley, 676 A.2d 501, 503 (Me. 1996) ("Challenges to a conviction after a guilty plea on grounds of involuntariness of the plea, lack of knowledgeability on the part of the defendant regarding the consequences of his plea, ineffective assistance of counsel, misrepresentation, coercion or duress in securing the plea, the insanity of the pleader, or noncompliance with the requirements of M.R. Crim. P. 11 are collateral and may be pursued only by post-conviction review pursuant to 15 M.R.S.A. ßß 2121-2132 (Supp. 1995)."); State v. Goode, 588 A.2d 307, 308 (Me. 1991) ("The State may demonstrate, at an evidentiary hearing, that the plea was valid despite a defect in the Rule 11 proceeding.. . . That evidentiary hearing may be held either in connection with the motion to withdraw the plea, or in post-conviction review proceedings. We . . . will not consider a claim of constitutional deficiency in the entry of a guilty plea, in the absence of an adequate record developed at such a hearing.") (citations omitted); State v. Morrison, 567 A.2d 1350, 1352 (Me. 1990) ("Normally the record on a direct appeal is not adequate for us to review a defendant's claim that his waiver of counsel was defective. . . . [P]ost-conviction review is a proceeding moreconducive to the development of evidence that is more sharply focused on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.") (quotations omitted); State v. Mank_l 501 A.2d 809, 811, 811 n.2 (Me. 1985) ("A defendant may challenge a purported waiver of jury trial on direct appeal only if it is clear on the record of the case that there was no valid waiver of jury trial. . . . [I]nformation extraneous to what took place before the court is properly received only in post-conviction proceedings with the built-in safeguards of sworn testimony and opportunity for cross-examination and rebuttal.") (quotation and citation omitted); Kimball v. State, 490 A.2d 653, 658, 658 n.3 (Me. 1985) ("Review of a criminal judgment on direct appeal extends to examination of a claim of ineffective assistance of counsel on a new trial motion, provided that the record is adequate for review of that issue without further evidentiary hearings. . . . Ordinarily, of course, the record on appeal is not adequate for reviewing the counsel issue, so that the claim of ineffective assistance must be presented and tried in a collateral review proceeding."); State v. Boilard, 359 A.2d 65, 68 (Me. 1976) ("As we analyze the facts in this record, we are unable to say that there has been an unquestioned violation of appellant's constitutional right to a trial by jury. Thus, post-conviction relief would be the appropriate proceeding wherein the appellant might be able to show that the jury waiver was neither voluntarily nor intelligently executed."); Brown v. State, 1982 Me. Super. LEXIS 108 at *8 ("Where the showing of voluntariness does not appear in the record of the proceedings in which the plea was entered, the Petitioner's recourse is necessarily a post-conviction type of remedy.").²

In many cases, the need for additional evidence obtained through postconviction review is obviated by the existence of a sufficient record on which the courtcould evaluate the voluntariness of the defendant's waiver. In these cases, where the court did not require an evidentiary hearing through post-conviction review procedures, it either implicitly or explicitly found that the record itself was sufficient.³Cf. Tovar, 541 U.S. at 90-91 (finding that the record indicated that Tovar's waiver of counsel was knowing and voluntary based upon "some things more" than the plea colloquy itself); United States v. Ward, 518 F.3d 75 (1st Cir. 2008) (finding "that the record of the state court proceeding in this case contained sufficient evidence to permit the

district court to find that Ward entered his [underlying enhancement] state plea voluntarily"); Gach, 2006 ME 82, ¶l3, 901 A.2d at 187 (Silver, J.,...