Successful motion to strike prior

STATE OF MAINE

UNIFIED CRIMINAL DOCKET

CUMBERLAND, ss.

Docket No. CUMCD-CR-2011-XXXX

 

 

STATE OF MAINE ]

]

v. ]

]

XXX ]

 

MOTION TO STRIKE PRIOR CONVICTION

 

The Defendant moves this Honorable Court to strike from Count 2 of the Indictment the following language: “Within a 10 year period XXX had one or more convictions for Domestic Violence Assault, on May 17, 2010, in the Unified Criminal Court, Docket No. XXX”, thus making Count 2 a Class D Domestic Violence Assault allegation. In support hereof, the Defendant further states:

 

  1. The Defendant is charged in Count 2 of the indictment on the above-captioned matter with Class C Domestic Violence Assault because the prosecution alleges a prior conviction for Domestic Violence Assault, specifically “Within a 10 year period XXX had one or more convictions for Domestic Violence Assault, on May XXX, in the Unified Criminal Court, Docket No. XXX.” See Indictment (emphasis in original).
  2. Unified Criminal Court, Docket No. XXX is a Class D Domestic Violence Assault that the Defendant plead guilty to at his first appearance in court with a lawyer of the day assisting him and is being used by the State to enhance this case to a Class C allegation. See 17-M.R.S.A. 207-A. 
  3. The Defendant when he entered his guilty plea in the Unified Criminal Court, Docket No. XXX was not properly advised of his arraignment rights pursuant to U.C.D.R.P. – Cumberland County 5(b) and 5(d) including the right to counsel or any other constitutional rights.
  4. U.C.D.R.P. – Cumberland County 5(b) provides, “(b) Initial Statement by the Justice or Judge. When a person arrested, either under a warrant issued upon an indictment, an information, or upon a complaint filed in the Unified Criminal Docket or without a warrant is brought before a justice or judge or a person who has been summonsed appears before a justice or judge in response to a summons, the justice or judge in open court, shall, unless waived by the person or the person’s counsel: (1)  inform the person of the substance of the charges against the person;  (2)  inform the person of the person’s right to retain counsel, and to request the assignment of counsel; (3) inform the person that the person is not required to make a statement and that any statement made by the person may be used against the person; (4)  admit the person to bail as provided by law; and  (5)  inform the person that they have the duty to make immediate payment in full of any fine that ultimately may be imposed by the court if convicted of the charges against the person.” (emphasis added)
  5. U.C.D.R.P. – Cumberland County 5(d) provides, in part, “(d) Further Statement and Arraignment with Respect to Class D or E Crimes. In addition to the statements in subsection (b) of this rule, when a person is charged with a Class D or Class E crime and no related Class C or higher crime, before calling upon the person to plead, the justice or judge shall inform the person of: (1)  the maximum penalties and any applicable mandatory minimum penalties; and (2)  the person’s right to trial by jury.”
  6. The Defendant at his arraignment for Unified Criminal Court, Docket No. XXX was never advised that he had the right to counsel after his arraignment when the lawyer of day’s services terminated or any of the rights contained within U.C.D.R.P. – Cumberland County 5(b) and 5(d). Nor did the Defendant waive such rights. See Recording of Arraignment
  7. The Defendant was entitled to appointed counsel, assuming he met the financial requirements, because he was sentenced to 120 days all but 7 days suspended and 2 years of probation and a $300 fine. See Docket Record for Unified Criminal Court, Docket No. XXX.
  8. Counsel had the opportunity to review the audio recording from the Defendant’s arraignment for Unified Criminal Court, Docket No. XXX and the recording is void of the court advising the Defendant of his rights under U.C.D.R.P. – Cumberland County 5(b) and 5(d) including his right to counsel. Additionally, no representation is made by the lawyer of the day that the Defendant was advised of his rights or that the Defendant was waiving his rights.
  9. There is nothing in the record of the Defendant’s arraignment under Unified Criminal Court, Docket No. XXX to indicate the Defendant knowingly, intelligently, or voluntarily waived his arraignment rights, trial rights, or the right to counsel.

LEGAL ARGUMENT

 

All criminal defendants facing the risk of jail time are entitled to counsel and the right must be provided absent a knowing and intelligent waiver. Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); U.S. Const. Sixth Amend.; Maine Const. Art. I, Sec. 6. Judge Coffin in United States v. Proctor, 166 F.3d 396, 402 (1st Cir.1999), characterized the constitutionally guaranteed right of representation by counsel as “a right of the highest order.” The right to counsel afforded by Aticle I, section 6 of the Maine Constitution is commensurate with that of the Sixth Amendment of the federal Constitution. State v. Gallant, 595

A.2d 413, 416 (Me.1991).  The right applies equally in cases where the defendant pleads guilty before trial as to when he goes to trial. Walker v. Johnston, 312 U.S. 275 (1941); Mempa v. Rhay, 389 U.S. 128 (1967). Unified Criminal Docket Rule of Procedure-Cumberland County 5(b)(2) requires the trial court in open court to inform the defendant of his right to counsel, unless the defendant or counsel waives reading of his arraignment rights.

A valid waiver of the right to counsel must be voluntarily, knowingly, and intelligently made and appear on the record. State v. Watson, 900 A.2d 702, 708 (Me. 2006). “[T]he record should reflect that the court addressed the preceding elements [involving right to counsel at trial] with the defendant in some fashion.” Id. at 711. The minimum requirement upon an entry of a guilty plea is that the defendant must be informed of the right to counsel, of all the elements of the offense, and of the penalties that he faces when entering a plea of guilty. Iowa v. Tovar, 541 US 77, 81 (2004). “Constitutional rights, including the right to counsel, may be waived as long as the waiver is voluntary, knowing, and intelligent.  However, because it is a fundamental constitutional right, the right to representation by counsel requires that every reasonable presumption must be indulged against waiver.” State v. Watson, 2006 ME 80, ¶ 15, 900 A.2d 702, 708 (citing State v. Caldwell, 2003 ME 85, ¶¶ 8, 10, 828 A.2d 765, 767, 768; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)(articulating a strong presumption against waiver of counsel); Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

Since the right to counsel is unique and unlike other rights, uncounseled convictions can be attacked collaterally instead of only through habeas or post conviction proceedings. Curtis v. United States, 511 U. S. 485, 494-95 (U.S. 1994). In collaterally attacking an uncounseled conviction, the burden is on the defendant to establish the right to counsel was not validly waived. Iowa v. Tovar, 540 1U. S. 77, 92 (2004). The transcript from the Defendant’s arraignment and plea under Unified Criminal Court, Docket No. XXX is void of any advisement of the right to counsel. Therefore, it is void of any voluntary, knowing, or intelligent waiver of the right to counsel. Thus the Defendant has meet his burden.

The current case is substantially different from State v. Galarneau, 2011 ME 60, 20 A.2d 99. The Law Court found in Galarneau the “prior conviction was constitutional because [Galarneau] was represented by the lawyer for the day during his initial appearance on the charges filed in the Superior Court, and the court confirmed the lawyer of the day did in fact advise him of his rights.” Galarneau at ¶ 3, 100. Defendant XXX, unlike the defendant in Galarneau, was not advise of his rights by the lawyer of the day and the record is void of any indication that anybody advised the Defendant of his rights. “[T]he mere fact that a lawyer of the day stands with the defendant when she is arraigned is not enough to satisfy the requirement that the defendant knew about her jury trial rights.” State v. Ouellette, 901 A.2d 800, 809 (Me. 2006). This same principle should be applied to the right to counsel, which is a “right of the highest order.” United States v. Proctor, 166 F.3d 396, 402 (1st Cir.1999). The mere fact that a lawyer of the day stood with the Defendant and addressed the court should not be enough to satisfy the requirement that the defendant knew about his right to counsel at or after his initial appearance. At a minimum, the trial court should have informed the defendant he had a right to counsel, the lawyer for the day was only assisting for that day’s proceedings, that the defendant had a right to counsel beyond the limited services of the lawyer for the day if he choose to plead not guilty and that by pleading guilty the defendant was waiving the right to counsel. The presence of the lawyer for the day does not relieve the court of its important role in assuring each defendant is made aware of his right to counsel and that the right to counsel is voluntarily, knowingly, and intelligently waived before a guilty plea is accepted unless the lawyer of the day or the defendant waives reading of the defendant’s arraignment rights.  It cannot be presumed that the lawyer of the day did in fact advised the Defendant of his rights as it must appear on the record.

A prior conviction may be used to enhance the current offense only if the prior conviction was constitutionally obtained. State v. Cook, 1998 ME 40, ¶ 11; 708 A.2D 603, 606. Convictions obtained without a valid waiver of the right to counsel are jurisdictionally void. “[I]f the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. . . . The judgment of conviction pronounced by a court without jurisdiction is void….”Johnson, 304 U.S. at 468. “[A] conviction later determined to be invalid cannot ordinarily be used to determine a future sentence. United States v. Gray, 177 F.3d 86, 89 (1st Cir. 1999) (citing Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), affirmed in Nichols v. United States, 511 U.S. 738, 746, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (drawing line “between criminal proceedings that resulted in imprisonment, and those that did not”); Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (Sixth Amendment forbids use of uncounseled conviction “either to support guilt or enhance punishment for another offense”); see also United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

The Defendant prays that this Honorable Court will GRANT this motion and strike from Count 2 of the Indictment the following language: “Within a 10 year period XXX had one or more convictions for Domestic Violence Assault, on May 17, 2010, in the Unified Criminal Court, Docket No. XXX”, thus making Count 2 a Class D allegation.

 

Respectfully submitted,

 

Robert C. LeBrasseur

 

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