State v. Shepard
| Decision Date | 03 February 2022 |
| Docket Number | Docket: Cum-21-136 |
| Citation | 2022 ME 11,268 A.3d 274 |
| Parties | STATE of Maine v. Christopher SHEPARD |
| Court | Maine Supreme Court |
Robert C. Andrews, Esq. (orally), Portland, for appellant Christopher Shepard
Jonathan Sahrbeck, District Attorney, and Angela Cannon, Asst. Dist. Atty. (orally), Prosecutorial District No. 2, Portland, for appellee State of Maine
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
[¶1] Christopher Shepard appeals from a judgment of conviction for gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2021), and sexual misconduct with a child under twelve years of age (Class C), 17-A M.R.S. § 258(1-A) (2021), entered in the trial court (Cumberland County, Stewart, J. ) after a conditional guilty plea. On appeal, Shepard argues that the trial court (French, C.J. ) erred or abused its discretion in denying his motion to dismiss the indictment based on an alleged violation of the Interstate Compact on Detainers, 34-A M.R.S. §§ 9601 - 9636 (2021). We disagree and affirm.
[¶2] On June 9, 2017, a grand jury indicted Shepard on three counts of gross sexual assault, 17-A M.R.S. § 253(1)(C), and one count of sexual misconduct with a child under twelve years of age, 17-A M.R.S. § 258(1-A). The indictment alleged that Shepard had engaged in sexual acts with a minor and that Shepard had displayed sexually explicit materials to a minor under twelve years of age with the intent of encouraging the minor to engage in sexual acts. The court (Warren, J. ) issued an arrest warrant, but Shepard was arrested on separate charges in New York before Maine authorities were able to execute the warrant.
[¶3] In November 2017, Shepard pleaded guilty in federal court in New York to possession of child pornography, see 18 U.S.C.S. § 2252A(a)(5)(B) (LEXIS through Pub. L. 117-80 ), and was sentenced to 180 months’ imprisonment in a federal correctional institution in New York.
[¶4] On June 14, 2018, the State of Maine lodged a detainer against Shepard, seeking to have him brought to trial on the charges in the indictment. On February 12, 2020, Shepard caused a letter to be delivered to the prosecuting officer in Cumberland County—but not to the trial court—requesting to be returned to Maine to face the charges against him pursuant to Article III of the Interstate Compact on Detainers (the Compact). See 34-A M.R.S. § 9603(1).
[¶5] In early March 2020, however, the COVID-19 pandemic caused the Maine Judicial Branch to take action to protect public health. On March 13, 2020, the Maine Supreme Judicial Court issued an emergency order postponing all jury trials, as well as the vast majority of criminal matters, until May 1, 2020. See Emergency Order and Notice from Maine Supreme Judicial Court Courthouse Safety and Coronavirus (COVID-19) at 1-3 (Mar. 13, 2020); see also Revised Emergency Order and Notice from the Maine Supreme Judicial Court Courthouse Safety and Coronavirus (COVID-19) at 1-2 (Mar. 18, 2020). This order permitted parties who had "urgent and compelling reasons" for needing in-person proceedings, including criminal trials, to petition the court to hold those proceedings. See Emergency Order and Notice from Maine Supreme Judicial Court Courthouse Safety and Coronavirus (COVID-19) at 2. The suspension of jury trials was later extended until September 7, 2020. See, e.g. , PMO-SJC-1 State of Maine Judicial Branch Pandemic Management Order at 3 (revised May 28, 2020). These orders did not toll any statutory deadlines. See Emergency Order and Notice from Maine Supreme Judicial Court Courthouse Safety and Coronavirus (COVID-19); see also PMO-SJC-2 State of Maine Judicial Branch Pandemic Management Order at 4 (Mar. 30, 2020) ().
[¶6] Shepard was delivered to Maine and arraigned in July 2020. He pleaded not guilty.
[¶7] Article III of the Compact sets a 180-day deadline for bringing criminal defendants to trial when they properly request final disposition of the charges against them.1 See 34-A M.R.S. § 9603(1). This period begins to run when the defendant's request is received by the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction. Id. ; Fex v. Michigan , 507 U.S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). If this deadline is not met, the charges against the defendant must be dismissed with prejudice.2 34-A M.R.S. § 9605(3).
[¶8] There are two exceptions to this strict deadline. First, a court may grant "any necessary or reasonable continuance" when "good cause [is] shown in open court," provided that the prisoner or his attorney is present, see id. § 9603(1); see also id. § 9604(3). Second, the 180-day period is tolled "whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." See id. § 9606.
[¶9] Cognizant of this deadline, the State filed a motion to extend the time to bring Shepard to trial pursuant to the "good cause" continuance provision. See id. § 9603(1). In support of its motion, the State argued that the difficulties in getting Shepard to Maine and the postponement of trial proceedings due to the COVID-19 pandemic constituted "good cause" to extend the deadline. This motion was filed on August 11, 2020—181 days after Shepard sent his letter to the prosecuting officer. See M.R.U. Crim. P. 45(a) ().
[¶10] Shepard objected to the motion and moved to dismiss the charges against him, arguing that there was no good cause for a continuance because the delay was the fault of the State, which bore the burden of showing compliance with the Compact and had allegedly failed to prioritize the case against him.
[¶11] On September 25, 2020, after a hearing, the trial court (French, C.J. ) granted the State's motion to extend time and denied Shepard's motion to dismiss. The trial court concluded that the postponement of judicial proceedings due to the COVID-19 pandemic constituted good cause for a continuance under 34-A M.R.S. § 9603, stating that "where the State was unable to bring the defendant to trial because the courts had delayed all criminal jury trials by emergency orders, the delay is reasonable and necessary."
[¶12] On April 5, 2021, Shepard entered a conditional plea of guilty to all counts of the indictment. The court (Stewart, J. ) sentenced him to seven and a half years’ imprisonment for each count of gross sexual assault and five years’ imprisonment for the sexual misconduct charge, all to be served concurrently with each other and with Shepard's ongoing 180-month sentence in federal prison.3 Shepard timely appeals. See 15 M.R.S. § 2115 (2021) ; M.R. App. P. 2B(b).
[¶13] Shepard argues that the continuance was ineffective because (A) it was granted outside the 180-day period provided by Article III of the Compact and (B) was unsupported by good cause. We disagree.
[¶14] Shepard asserts that the extension of time granted by the trial court could not have extended the 180-day deadline because the extension was not granted until after the deadline had expired on August 10, 2020. As a threshold matter, we need not address this issue because the argument was waived for want of development on appeal, given that it is only cursorily mentioned in Shepard's brief. See Mehlhorn v. Derby , 2006 ME 110, ¶ 11 & n.6, 905 A.2d 290 ; State v. Brunette , 501 A.2d 419, 422 (Me. 1985).
[¶15] More fundamentally, the argument presupposes that Shepard complied with the necessary procedures to start the running of the 180-day deadline. This presupposition is unsupported by the record because Shepard failed to comply with the procedural requirements of Article III. Hence, the 180-day period never began to run and, consequentially, the continuance was not granted outside the 180-day period.
[¶16] Article III of the Compact allows a defendant to request final disposition of charges pending against him in another jurisdiction by "caus[ing] to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of the [defendant's] imprisonment and the [defendant's] request for final disposition," after which the State has 180 days to bring the defendant to trial. 34-A M.R.S. § 9603(1) (emphasis added). If the notice and request for disposition are not delivered to the appropriate court, the defendant has not complied with Article III and the 180-day period does not begin to run, even when the proper documents were submitted to the prosecuting officer. See id. ; United States v. Washington , 596 F.3d 777, 780-81 (10th Cir. 2010) ; United States v. Brewington , 512 F.3d 995, 997 (7th Cir. 2008) ; see also United States v. Dailey , No. 2:12-00110-01, 2013 U.S. Dist. LEXIS 51172, at *26-34 (S.D. W. Va. Apr. 9, 2013).4 It is not enough for the defendant to show that the notice and request were transmitted to the warden of the prison in which he is incarcerated—the burden is on the defendant to show that delivery to the prosecuting official and the appropriate court actually occurred. See Fex , 507 U.S. at 52, 113 S.Ct. 1085 ; Washington , 596 F.3d at 780-81 ; Brewington , 512 F.3d at 997.
[¶17] Shepard has not pointed to any part of the record that shows that the notice and request were delivered to the trial court on February 12, 2020, or, indeed, at all. Nor does the docket record or trial court file contain any indication that the necessary documents were delivered to the court.5 At oral argument, Shepard acknowledged that the notice and request were initially delivered to the prosecution and not to the court, but hypothesized that the court must have eventually...
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