State of Maine v. Black

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STATE OF MAINE SUPERIOR COURT CRINIINAL ACTION DOCKET NO. CR-09-22 KENNEBEC, ss. I ,.. )111~ \ ~/v!J--'L/,- 7/ ! 1"/ . . . . ('I iP/d'<-'~;. ¢ STATE OF MAINE DECISION v. WILLIAM BLACK, Defendant Before the court is the defendant's motion to strike prior convictions. The defendant was indicted on an Operating Under Influence charge (class C) based on three or more alleged prior OUI offenses. The State alleges four prior OUI offenses. However, the defendant is challenging one conviction on July 28, 1999 (WATDC-CR-99-2137) and another conviction on April 25, 2001 (WATDC-CR-01-170). The defendant pled guilty to both above offenses. The defendant asserts that he was not represented by counsel during these convictions and did not knowingly or intelligently waive his right to counsel. Discussion It is well established that the defendant has a right to counsel at all critical stages of the criminal process. A waiver of that right must be voluntary, knowing, and intelligent. Absent a waiver, the lithe Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence. The judgment of conviction pronounced by a court without jurisdiction is void." Johnson v. Zerbst, 304 U.s. 458, 468 (1938). The Johnson court articulated a strong presumption against the waiver of the fundamental constitutional right of right to counsel. The Maine case of State v. O~tlette, 2 901 A.2d 800 (Me. 2006) asserts that the court cannot assume the regularity of the arraignment process or that the defendant had been advised of his right to be represented by counsel. See also State v. Watson, 900 A.2d 702 (Me. 2006). In this case, it is not clear whether the defendant was represented by counsel on a conviction occurring in 2001 in Waterville District Court. The State has presented evidence indicating that the defendant was represented by M. Dolly, acting as attorney for the day. The court records for that conviction does not indicate that the defendant was represented by anyone, not even the attorney for the day. Even if M. Dolly was involved as the attorney for the day, the State v. Oulette case makes it clear that this is not enough. In Oulette, the defendant met with the attorney for the day and the court stated: "We cannot presume, as we did in Gordon, that the attorney fulfill the duty of notifying Gulette about her constitutional rights, including her right to a jury triaL" Oulette, at 809. Since there is no transcript of the proceeding relative to the 2001 conviction and since there is no evidence other than some evidence that the defendant was represented by the lawyer for the day, the court finds that the defendant has proved that the evidence does not establish that the defendant competently and intelligently waived his constitutional right to assistance of counsel. With regard to the 1999 conviction, the docket sheet indicates that the defendant was not represented at all. Furthermore, there was an indication on the docket sheet (State's Ex. 2), that the defendant waived his right to counsel. This entry was made by the trial judge. This finding by the trial judge at the arraignment is evidence of the fact that the defendant waived his right to counsel. In the Johnson case, the court states the following: 3 liThe constitutional rights of an accused to be represented by counsel invokes, of itself, the protection of the trial court, in which the accused, whose life and liberty is at stake - is without counsel. This protecting duty imposes a serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. Or an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." Johnson, at 465. Although the court makes a finding in this matter that the defendant waived his right to counsel, the court's factual basis for the conclusion is not on the record. Based on the above, the court hereby grants the defendant's motion to strike the two prior convictions. It is hereby ORDERED that the two OUI convictions, the conviction of July 28, 1999, and the conviction of April 25, 2001, shall be stricken from the indictment. Dated: ? -,& -Or Attorney for the State Paul Rucha, ADA Kennebec County Courthouse Augusta, ME 04330 Attorney for Defendant Sherry Tash PO Box 192 Whitefield, ME 04353 STATE OF MAINE vs WILLIAM BLACK 554 VASSALBORO RD SOUTH CHINA ME 04358 SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CR-2009-00022 DOCKET RECORD DOB: 06/07/1956 Attorney: SHERRY TASH HAINKE & TASH PO BOX 192 WHITEFIELD ME 04353 APPOINTFD 01/14/2009 State's Attorney: EVERT FOWLE Charge(s) 1 OPERATE AFTER HABITUAL OFFENDER REVOCATION 12/17/2008 AUGUSTA 3 PRIOR Seq 11244 29-A FRYE 2557-A(2) (D) / AUG Class·C Docket Events: 01/14/2009 Charge(s): 1 TRANSFER - PERMANENT TRANSFER EDI ON 01/14/2009 @ 18:00 TRANSFERRED CASE: SENDING COURT CASEID AUGDCCR200802851 FILING DOCUMENT - CASH BAIL BOND FILED ON 12/17/2008 01/14/2009 BAIL BOND - $500.00 CASH BAIL BOND FILED ON 12/18/2008 BAIL BOND - CASH BAIL BOND DISBURSEMENT ON 01/13/2009 Charge(s): 1 INITIAL APPEARANCE SCHEDULED FOR 01/14/2009 HE1,iUNG - @ 8:30 in Room No. 1 NOTICE TO PARTIES/COUNSEL Charge (s): 1 HEARING - INITIAL APPEARANCE NOT HELD ON 01/14/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 01/14/2009 Chcirgc(s): 1 PERMANENT TRANSFER TRANSFERRED ON 01/14/2009 FINDING AUGSC 01/22/2009 B!,lL BOND - $500.00 CASH BAIL BOND FILED ON 01/22/2009 Bail Receipt Type: CR B"il ,-,:llt: $500 Date Bailed: 01/14/2009 Receipt Type: CK Prvdr Name: PATRICIA GEARY Rtrn Name: PATRICIA GEARY 01/22/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 01/14/2009 RC~~~T E MULLEN ¢ JUDGE Page 1 of:3 Printed on: 07/06/2009 WILLIAM BLACK AUGSC-CR-2009-00022 DOCKET RECORD COPY TO PARTIES/COUNSEL 01/22/2009 Party(s): WILLIAM BLACK ATTORNEY - APPOINTED ORDERED ON 01/14/2009 Attorney: SHERRY TASH 01/22/2009 Charge (s): 1 HEARING STATUS CONFERENCE SCHEDULED FOR 03/10/2009 @ 10:00 01/22/2009 Charge(s): 1 HEARING STATUS CONFERENCE NOTICE SENT ON 01/22/2009 02/20/2009 ORDER - TRANSCRIPT ORDER FILED ON 02/20/2009 REQUEST FOR TRANSCRIPT OF 7/28/99 PROVISION OF RIGHTS BY THE COURT FOR PLEA AND SSNTENCING; 4/25/01 PROVISION OF RIGHTS BY THE COUT AND PLEA AND SENTENCING. 2/24/09 COPY SENT TO ER 03/10/2009 Charge (s): 1 lIL;lJUNG - STATUS CONFERENCE HELD ON 03/10/2009 J(j~E,)Il M JAI3AR , JUSTICE Reporter: JANETTE COOK Defendant Present in Court 03/10/2009 Charge(s): 1 HUJUNG STA'l'US CONFERENCE SCHEDULED FOR 04/14/2009 @ 10: 00 03/10/2009 C1Llr'.le (s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 03/10/2009 03/10/2009 Mehle:) - MOTION TO AfvIEND BAIL FILED BY DEFENDANT ON 03/09/2009 03/27/2009 Char'Je (s): 1 lll,i.:d:;,j [iTATUS CONFERENCE NOT HELD ON 03/27/2009 03/27/2009 C]klL':!l': (s): 1 IILldUliG - AldVUGNMENT SCHEDULED FOR 04/14/2009 @ 10: 00 03/27/2009 CI1JLgc: (s): 1 HEARING - ARRAIGNMENT NOTICE SENT ON 03/27/2009 03/27/2009 Cl:. c'.l'- (s): 1 SUPPLEMENTAL FILING - INDICTMENT FILED ON 03/27/2009 04/16/2009 Charge(s): 1 H;:.'U ,:(; - !,RRAIGNMENT HELD ON 04/14/2009 L.... MILLS, JuSTICE R,->~)r::cr: TJJ~:~Y DROUIN R:,DLJ.J WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/INFORMATION GIVEN TO U::. :"'::;".NT. 21 O;"YS TO t·ILE MOTIONS 04/16/2009 Cltll:lj e ( s): 1 p~:..." NOT GUILTY ENTERED BY DEFENDANT ON 04/14/2009 04/21/2009 MO':.'ION TO OTHER S'~'?IKL: ~lOTION FILED BY DEFENDANT ON 04/21/2009 ::,IOR COlNICTIONS Page 2 of 3 Printed on: 07/06/2009 WILLIAM BLACK AUGSC-CR-2009-00022 DOCKET RECORD 04/21/:;'009 HE.:,RING - OTHER MOTION SCHEDULED FOR 06/10/2009 @ 8:30 MOTIon TO S';'RIKE PR:::CR. CONVICTIONS 06/11/2009 H~:.·\RI!JG - OTHER MOTION HELD ON 06/10/2009 JCSEPH M JAD.Z\R. , JUSTICE Attorney: SHERRY TASH Jl,MES MITCHELL Dl·.: Reporter: TAMMY DROUIN Defendant Present in Court MOTION TO STRIKE PRIOR CONVICTIONS 06/11/2009 MOTION - OTHER MOTION UNDER ADVISEMENT ON 06/10/2009 JOSEPH M JAI3AR , JUSTICE MOTION TO STRIKE PRIOR CONVICTIONS 07/06/2009 MG";OI; - OTHER MOTIOIJ GRANTED ON 07/02/2009 JOSEPH M JAI3AR , JUSTICE !"'Jl'lO,J TO S';':'.IlZE j>jdC;, CONVICTIONS 07/06/2009 c.,. L,J'~ \ s): ::. '1. ",-, DO::':;::::T Cl,LL SCiIEDULED FOR 09/01/2009 A TRUE COP'; ATTEST: Page 3 of 3 Printed on: 07/06/2009

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