State v. Kennedy, Docket No. Sag–14–471.

• Decision Date: 12 April 2016
• Docket Number: Docket No. Sag–14–471.
• Citation: 2016 ME 53,136 A.3d 357
• Parties: STATE of Maine v. Gerald B. KENNEDY.
• Court: Maine Supreme Court

136 A.3d 357

2016 ME 53

STATE of Maine

v.Gerald B. KENNEDY.

Docket No. Sag–14–471.

Supreme Judicial Court of Maine.

Argued: Nov. 5, 2015.

Decided: April 12, 2016.

Jamesa J. Drake, Esq. (orally), Drake Law, LLC, Auburn, for appellant Gerald B. Kennedy.

Geoffrey A. Rushlau, District Attorney, and Patricia A. Mador, Asst. Dist. Atty. (orally), Office of the District Attorney, Bath, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

Dissent: HJELM, J.

ALEXANDER, J.

[¶ 1] In this appeal, addressing standards for a collateral attack upon a prior misdemeanor conviction entered after an apparently uncounseled plea, we are asked to declare the prior conviction void because the defendant, although expressing an understanding of his right to representation and an intention to retain counsel following his arraignment, later entered a guilty plea without the presence of counsel.

[¶ 2] The defendant, seeking to collaterally attack a prior conviction, bears the burden to prove that he did not competently and intelligently waive his right to the assistance of counsel. In this case, the defendant has not met his burden of proof, and we affirm the judgment.

I. CASE HISTORY

[¶ 3] Gerald B. Kennedy appeals from the entry of a judgment of conviction in the Unified Criminal Docket (Sagadahoc County, Horton, J. ) following Kennedy's conditional guilty plea, authorized by U.C.D.R.P.–Cumberland County 11(a)(2), M.R. Crim. P. 11(a)(2),¹ to a charge of operating under the influence, elevated to a Class C offense by two prior convictions for operating under the influence, 29–A M.R.S. § 2411(1–A)(B)(2) (2015).² Kennedy argues that his 2013 OUI conviction, that was one of the two convictions that enhanced his 2014 charge to a Class C felony, was obtained in violation of his Sixth Amendment right to counsel and that the trial court erred in denying his motion to strike that conviction from the indictment.

[¶ 4] The available record indicates the following facts that are not in dispute. In 2008, Kennedy pleaded guilty to one count of OUI with one prior conviction for OUI.³ At that hearing, he consulted with a lawyer of the day. Kennedy does not challenge the 2008 conviction.

[¶ 5] In 2013, Kennedy was again charged with OUI with one prior conviction for OUI. The transcript of Kennedy's arraignment on July 2, 2013, indicates that he was shown a video explaining his rights, including his right to counsel, and that during the in-person discussion with the judge handling his arraignment, he indicated that he understood those rights, specifically stating that he knew he had the right to a court-appointed attorney. The court (J.D. Kennedy, J. ) advised Kennedy that his charge carried a mandatory minimum sentence of forty-eight hours in jail and told Kennedy he might be able to serve that through the alternative sentencing program.

[¶ 6] The court's statement as to the minimum sentence was incorrect. The mandatory minimum sentence of incarceration for a second offense OUI is seven days in jail. 29–A M.R.S. § 2411(5)(B)(2) (2015). When Kennedy asked about sentencing alternatives, the court advised Kennedy to speak with the lawyer of the day. Kennedy responded that he planned to hire his own attorney—“I'm going to hire me a lawyer.” The court entered a plea of not guilty on Kennedy's behalf and scheduled a dispositional conference for September 5, 2013.

[¶ 7] Kennedy appeared at the dispositional conference convened pursuant to the rules of the Unified Criminal Docket (Cumberland County, Brodrick, J. ). The record is silent as to whether he received the assistance of counsel before or during the dispositional conference. Following the conference, Kennedy appeared in open court, apparently without counsel, and in a brief, on the record hearing changed his plea to guilty. Reflecting what apparently had been agreed to at the dispositional conference, the court sentenced Kennedy to ten days in jail,⁴ a three-year license suspension, and a $700 fine. By agreement, Kennedy's reporting to jail was stayed almost three weeks, until September 23. Kennedy's right to counsel or waiver of the right to counsel was not discussed on the record during the 2013 plea hearing.

[¶ 8] Seven months later, Kennedy was again arrested for OUI and, on June 10, 2014, he was indicted in the Superior Court (Sagadahoc County) for third offense OUI (Class C). Kennedy, through court-appointed counsel, moved to strike the 2013 OUI conviction, arguing that it should not be considered for the purposes of enhancing the 2014 charge because the 2013 conviction was obtained in violation of his Sixth Amendment right to counsel.⁵ See U.S. Const. amend. VI ; State v. Johnson, 2012 ME 39, ¶ 23, 38 A.3d 1270.

[¶ 9] A hearing on Kennedy's motion to strike was held on August 20, 2014 (Horton, J. ). The evidence offered at the hearing consisted of only the docket entries regarding the 2013 conviction and audio recordings and/or transcripts of the 2013 arraignment and plea hearings. Neither Kennedy nor any other witness testified.

[¶ 10] Kennedy argued that during the 2013 plea proceeding, the court was constitutionally required to take affirmative steps to ensure that Kennedy had knowingly and intelligently waived his right to counsel and that his waiver of the right to counsel appeared on the record. However, Kennedy acknowledged that he was aware of his right to counsel and, in his attempt to collaterally attack the 2013 conviction, offered no evidence to show whether he did or did not speak to a lawyer before he appeared for the plea hearing.

[¶ 11] The court denied the motion to strike, concluding that Kennedy bore the burden to prove that he had not knowingly, intelligently, and voluntarily waived his right to counsel and that he had not met that burden. The court based its decision on the following facts: (1) Kennedy pleaded guilty to an identical charge in 2008 and had assistance of counsel at that proceeding; (2) Kennedy confirmed at his 2013 arraignment that he understood his rights, including the right to counsel; (3) the 2013 arraignment judge advised Kennedy of his right to counsel; (4) the arraignment judge encouraged Kennedy to speak with the lawyer of the day; and (5) Kennedy told the arraignment judge he planned to retain counsel. Additionally, the trial court stated that it was

significant that the record is silent on why [Kennedy] did not follow through on his stated plan to retain an attorney for his defense. In the absence of an alternative explanation for why, after stating his intention to retain an attorney, he appeared without counsel and pleaded guilty, it seems logical to infer that his entry of an uncounseled plea was a voluntary choice.

[¶ 12] The trial court observed: “even though he plainly knew he had a right to counsel, he should have been asked at the time of his plea whether he wished to waive his right to counsel.” The trial court concluded that “[a]t least in hindsight, an express inquiry into whether ... Kennedy was waiving his right to counsel would have been preferable,” but that such an inquiry is not constitutionally mandated. Accordingly, Kennedy's motion to strike the 2013 conviction that enhanced the OUI charge was denied.

[¶ 13] Kennedy then entered a conditional guilty plea to the Class C OUI, reserving his right to appeal the trial court's denial of his motion to strike the 2013 conviction. M.R. Crim. P. 11(a)(2). On the conviction for Class C OUI, the court sentenced Kennedy to three years in prison with all but six months suspended, two years of probation, a $1,100 fine, and a six-year license suspension.⁶ The sentence was stayed pending Kennedy's appeal. Kennedy then brought this appeal.

II. LEGAL ANALYSIS

[¶ 14] Collateral attacks on a prior conviction in a subsequent proceeding are generally not allowed outside the post-conviction review process, except when a defendant alleges a deprivation of the right to counsel in the prosecution leading to the prior conviction. Johnson, 2012 ME 39, ¶¶ 7, 23, 38 A.3d 1270. In this collateral attack on a prior conviction, unlike in a direct attack on a prior conviction, we do not determine whether Kennedy expressly or impliedly waived his right to counsel—it is his burden, instead, to prove that he did not waive his right to counsel, in any manner, prior to the entry of his guilty plea. See Iowa v. Tovar, 541 U.S. 77, 92, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (applying state law requiring that “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”); Parke v. Raley, 506 U.S. 20, 29–34, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) ; State v. Robbins, 2012 ME 19, ¶¶ 2–3, 37 A.3d 294 ; United States v. Sanchez, 354 F.3d 70, 81 (1st Cir.2004).⁷

[¶ 15] In arguments to the trial court and to us, Kennedy acknowledges that (1) he has the burden of proof in his collateral attack on the 2013 conviction; (2) he did not testify or present any evidence that he was unaware of his right to counsel or that he did not make a knowing and intelligent choice to proceed without counsel; and (3) there was no evidence as to what occurred between the arraignment and the plea hearing.

[¶ 16] Despite these acknowledgements, Kennedy asserts that the 2013 conviction must be voided because the brief transcript of his plea and sentence, following the dispositional conference, includes no reference to his right to counsel or his waiver of the right to counsel.⁸ In essence, Kennedy argues that without consideration of the totality of the circumstances, and without any evidence of his understanding of his right to counsel, or of what occurred between the arraignment and the plea hearing, he should prevail because the right to counsel was not discussed in the plea transcript.

[¶ 17] The law does not...