Cooper v. State of Maine

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STATE OF MAINE KENNEBEC, SS. fSUPERIOR . . .-..n::c.-l'!rnLL!.,-,- FILE . . ,.. - .- . < ,&,,:lij ,.. ..,- . 6 .rp ' -. ... ,- t..LLd . - L F L ; < / ! ~ ;?~ MINALCOURT ACTION CKET NO. CR-04-93/94 PRESTON COOPER, Petitioner v. STATE OF MAINE, DECISION O N PETITION FOR POST-CONVICTION REVIEW Respondent T h s matter comes before the court on the petition of Preston Cooper for postconviction review pursuant to 15 M.R.S.A. §§ 2121-2130. The procedural hstory of Mr. Cooper's convictions1 is well set out in the Post-Conviction Assignment Order dated April 15, 2004, and will be incorporated herein. Suffice it to say that Cooper seeks review of h s convictions, particularly with regard to the sentences on charges of eluding an officer and unlawful trafficlung in schedule W drugs. These sentences were ordered to be served consecutively, with the effect that Cooper would serve a total of six years followed by a four-year period of probation. The petitioner's original petition has been amended and h s original attorney has been replaced, factors w h c h have led to some ambiguity as to the petitioner's grounds for post-conviction review. However, judging by the petitioner's own testimony at hearing, it appears that h s current concerns involve confusion at the time of sentencing as to what was going on and a belief that he received ineffective assistance by appointed counsel. Testimony was taken from the petitioner and h s previous attorney. The parties also stipulated as part of the record transcripts of the proceedings pursuant to M.R. 1 This single decision incorporates petitions filed on two convictions of Mr. Cooper. See footnote 1 of the Post-Conviction Assignment Order. Crim. P. 11 and the sentencing hearing. In addition, admitted by agreement was a series of five pieces of correspondence between the Assistant Attorney General, the petitioner and the petitioner's attorney, all of whch has been considered by the court in malung its decision. With regard to the petitioner's first argument - that he was confused concerning the sentencing process and did not receive a sentence in accordance with an agreement - tlus argument is belied by the correspondence and transcripts. The correspondence labeled plaintiff's exhbits 1-5 show a progression of negotiation between defense counsel and the State and defense counsel's detailed explanation to the petitioner. It would strain credulity to believe that anyone would believe that he was going to receive a two-year sentence in light of the correspondence exchange. At the time of sentencing, the court clearly announced a sentence w h c h involved a mixture of concurrent and consecutive sentences w h c h would result in the petitioner serving six years, followed by four years of probation. If the court's explanation of the sentence was not sufficiently clear, that problem was alleviated by the petitioner's attorney at the end of the sentencing as follows: Mi-. Campbell: Judge, the total sentence actually in terms of time served that has been imposed I understand is a six-year time, that would be for credit for time served? The Court: Six years and, obviously, credit for time served, yes. Mr. Campbell: As a practical matter, four years of probation and four years suspended? The Court: Correct. Neither at tlus time nor during h s extended allocution, did the petitioner ever mention any specific agreement or understanding on h s part that he was going to receive only a two-year sentence. The petitioner has simply failed to sustain h s burden of proof on h s issue. On the second issue - ineffective assistance of counsel - the court has also relied upon the correspondence and the transcripts, as well as testimony by the witnesses. The standard of review in a post-conviction case involving alleged ineffective assistance of counsel is the following. The petitioner must demonstrate first that the performance of the trial attorney was below that of an ordinary fallible attorney, and second, that the attorney's performance deprived h m of a substantial ground of defense or likely affected the outcome of the trial. State v. Brewer, 1997 ME 177, qIqI 19-20, 699 A.2d 1139, 1144. In the context of a plea situation, the "prejudice" inquiry becomes whether there is "a reasonable probability (probability sufficient to undermine confidence in the outcome) that, but for such ineffective representation the defendant would not have pleaded guilty and would have insisted on going to trial." Laferriere v. State, 1997 ME 169, qIqI 17-18, 697 A.2d 1301; Aldus v. State, 2000 ME 47, qIq[ 13-20, 748 A.2d 463, 468, 471. In applying two-prong test, the United States Supreme Court has noted, Judicial scrutiny of counsel's performance must be hghly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hndsight, to reconstruct the circumstances of counsel's alleged conduct, and to evaluate the conduct from counsel's perspective at that time . . . . There are countless ways to provide effective assistance in any gven case. Even the best criminal attorneys would not defend a particular client in the same way. Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. 2052, 8 L.Ed.2d 674 (1984). Looking at the present case, the court finds neither of the prongs of the test has been satisfied. With regard to the "performance" prong, the record is clear that defense counsel engaged vigorously in negotiations with the State and made what might be considered an impassioned argument to the court at the time of sentencing. The attorney is highly experienced in such matters, and there is no evidence at any time that he failed to communicate with the petitioner or misrepresent the State's position. The attorney even showed care in malung certain of the combined effect of the sentences. With regard to the "prejudice" prong, there is no evidence other than petitioner's selfserving testimony at hearing that he would have insisted on a trial if he did not receive a two-year sentence. A review of the documents shows that there was no serious discussion of even the possibility of a two year sentence. The petitioner fails the test on both prongs. For the reasons stated above, the entry will be: Petition DENIED. Dated: January )Z.2006 , / S. IGrk Studstrup Justice, superio; Court SUPERIOR COURT KENNEBEC, ss . Docket No AUGSC-CR-2004-00094 PRESTUN COOPER vs STATE OF MAINE DOCKET RECORD PL. DOB: 06/07/1964 PL. ATTY: CAROL WEBB LAW OFFICES OF CAROL J. WEBB 237 MAIN ST WATERVILLE ME 04901 APPOINTED 01/13/2005 PL. ATTY: DAVID PARIS 72 FRONT STREET BATH ME 04530-2657 WITHDRAWN 11/18/2004 State's Attorney: EVERT FOWLE Filing Document: PETITION Filing Date: 03/15/2004 Major Case Type: POST CONVICTION REVIEW Charge ( s ) Docket Events: 03/15/2004 FILING DOCUMENT - PETITION FILED ON 03/15/2004 03/15/2004 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 03/15/2004 04/27/2004 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO DOCKET ON 04/27/2004 E ALLEN HUNTER , JUSTICE CASE ASSIGNED TO THE REGULAR CRIMINAL DOCKET, ; CONDITIONAL APPOINTMENT OF COUNSEL; TIME LIMITS ESTABLISHED. COPY TO COUNSEL 04/29/2004 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO JUSTICE ON 04/29/2004 S KIRK STUDSTRUP , JUSTICE 04/29/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 04/28/2004 04/29/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 04/28/2004 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL 04/29/2004 Party ( s ) : PRESTON COOPER ATTORNEY - APPOINTED ORDERED ON 04/28/2004 Attorney: DAVID PARIS 05/14/2004 ORDER - TRANSCRIPT ORDER FILED ON 05/14/2004 07/02/2004 OTHER FILING - TRANSCRIPT FILED ON 07/02/2004 TRANSCRIPT OF RULE 11 07/08/2004 OTHER FILING - TRANSCRIPT FILED ON 07/08/2004 TRANSCRIPT OF SENTENCING 08/04/2004 SUPPLEMENTAL FILING - AMENDED PETITION FILED ON 08/04/2004 11/16/2004 MOTION 01/24/2005 Party(s): MOTION FOR WITHDRAWAL OF CNSL FILED BY DEFENDANT ON 11/16/2004 PRESTON COOPER Page 1 of 2 Printed on: 01/17/2006 STATE OF MAINE AUGSC-CR-2004-00094 DOCKET RECORD ATTORNEY - WITHDRAWN ORDERED ON 11/18/2004 Attorney: DAVID PARIS 01/24/2005 Party(s): PRESTON COOPER ATTORNEY - APPOINTED ORDERED ON 01/13/2005 Attorney: 09/20/2005 HEARING - CAROL WEBB EVIDENTIARY HEARING SCHEDULED FOR 10/25/2005 @ 1:00 NOTICE TO PARTIES/COUNSEL 10/27/2005 HEARING - EVIDENTIARY HEARING HELD ON 10/25/2005 S KIRK STUDSTRUP , JUSTICE Attorney: CAROL WEBB DA: JAMES CAMERON Reporter: JANETTE COOK Defendant Present in Court 10/27/2005 CASE STATUS - DECISION UNDER ADVISEMENT ON 10/25/2005 S KIRK STUDSTRUP , JUSTICE A TRUE COPY ATTEST : Clerk Page 2 of 2 Printed on: 01/17/2006 SUPERIOR COURT KENNEBEC, ss . Docket No AUGSC-CR-2004-00093 PRESTON M COOPER VS STATE OF MAINE DOCKET RECORD PL. DOB: 06/07/1964 PL. ATTY: CAROL WEBB LAW OFFICES OF CAROL J. WEBB 237 MAIN ST WATERVILLE ME 04901 APPOINTED 01/13/2005 PL. ATTY: DAVID PARIS 72 FRONT STREET BATH ME 04530-2657 WITHDRAWN 11/18/2004 State's Attorney: LARA NOMANI Major Case Type: POST CONVICTION REVIEW Filing Document: PETITION Filing Date: 03/15/2004 C h a r g e (s ) Docket Events: 03/15/2004 FILING DOCUMENT - PETITION FILED ON 03/15/2004 03/15/2004 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 03/15/2004 - ASSIGNMENT ASSIGNED TO DOCKET ON 04/27/2004 E ALLEN HUNTER , JUSTICE CASE ASSIGNED TO THE REGULAR CRIMINAL DOCKET; CONDITIONAL APPOINTMENT OF COUNSEL; TIME LIMITS ESTABLISHED. COPY TO COUNSEL. 04/29/2004 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO JUSTICE ON 04/29/2004 S KIRK STUDSTRUP , JUSTICE 04/29/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 04/28/2004 04/27/2004 POST CONVIC. REVIEW 04/29/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 04/28/2004 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL 04/29/2004 Party(s): PRESTON M COOPER ATTORNEY - APPOINTED ORDERED ON 04/28/2004 Attorney: DAVID PARIS TRANSCRIPT ORDER FILED ON 05/14/2004 05/14/2004 ORDER - COPY OF ORDER SENT TO JANET COOK AND TIMOTHY THOMPSON TRANSCRIPT FILED ON 07/02/2004 07/02/2004 OTHER FILING - TRANSCRIPT OF RULE 11 TRANSCRIPT FILED ON 07/08/2004 07/08/2004 OTHER FILING - TRANSCRIPT OF SENTENCING AMENDED PETITION FILED ON 08/04/2004 08/04/2004 SUPPLEMENTAL FILING 11/16/2004 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY DEFENDANT ON 11/16/2004 Page 1 of 2 Printed on: 01/17/2006 STATE OF MAINE AUGSC-CR-2004-00093 DOCKET RECORD 12/07/2004 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 11/18/2004 COPY TO PARTIES/COUNSEL 01/24/2005 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 01/13/2005 01/24/2005 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 01/13/2005 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL 01/24/2005 Party(s): PRESTON M COOPER ATTORNEY - WITHDRAWN ORDERED ON 11/18/2004 Attorney: DAVID PARIS 01/24/2005 Party ( 6 ) : PRESTON M COOPER ATTORNEY - APPOINTED ORDERED ON 01/13/2005 Attorney: CAROL WEBB 03/03/2005 POST CONVIC. REVIEW - PCR CONFERENCE SCHEDULED FOR 03/17/2005 03/03/2005 POST CONVIC. REVIEW - PCR CONFERENCE NOTICE SENT ON 03/03/2005 03/18/2005 POST CONVIC. REVIEW - PCR CONFERENCE HELD ON 03/17/2005 @ 1:00 03/18/2005 POST CONVIC. REVIEW - ORDER RESULTING FROM PCR CONF FILED ON 03/18/2005 S KIRK STUDSTRUP , JUSTICE Attorney: CAROL WEBB DA: LARA NOMANI 2 HRS. FOR HEARING. WITNESSES ANDREWS CAMPBELL AND PRESTON COOPER. CASES CR04-93 AND CR04-95 CONSOLIDATED FOR HEARING WITHOUT OBJECTION. 09/20/2005 HEARING - EVIDENTIARY HEARING SCHEDULED FOR 10/25/2005 @ 1:00 NOTICE TO PARTIES/COUNSEL 10/06/2005 WRIT - HABEAS CORPUS TO TESTIFY ISSUED ON 10/06/2005 CERTIFIED COPY TO SHERIFF DEPT. 10/27/2005 HEARING - EVIDENTIARY HEARING HELD ON 10/25/2005 S KIRK STUDSTRUP , JUSTICE Attorney: CAROL WEBB DA: JAMES CAMERON Reporter : JANETTE COOK Defendant Present in Court 10/27/2005 CASE STATUS - DECISION UNDER ADVISEMENT ON 10/25/2005 S KIRK STUDSTRUP , JUSTICE 01/03/2006 OTHER FILING - COUNSEL VOUCHER FILED ON 12/23/2005 Attorney: CAROL WEBB 01/03/2006 OTHER FILING - COUNSEL VOUCHER APPROVED ON 12/30/2005 S KIRK STUDSTRUP , JUSTICE 01/17/2006 FINDING - DENIED ENTERED BY COURT ON 01/13/2006 S KIRK STUDSTRUP , JUSTICE DECISION ON PETITION FOR POST CONVICTION REVIEW. PETITION DENIED A TRUE COPY ATTEST : Clerk Page 2 of 2 Printed on: 01/17/2006

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