State of Maine v. Harding

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STATE OF MAINE KENNEBEC, SS. SUPERIOR COURT CRIMINAL ACTION Docket No. CR-I0-875 ~~c'~ (i'\ . ,.~ . !<.~1':.0 / ' STATE OF MAINE ORDER DENYING MOTION TO DISMISS v. ALAN F. HARDING, Defendant I. PROCEDURAL BACKGROUND The complaint before this court was initially filed in the Augusta District Court on or about November 1, 2010. On November 16, 2010, counsel for the defendant entered an appearance, a waiver of the reading of the complaint, and an entry of a plea of not guilty to all counts in the complaint. Defendant submitted a timely jury trial request on or about December 3, 2010. No motions were filed in the District Court prior to transfer to the Superior Court. The matter was initially scheduled for a docket call in the Superior Court on January 4, 2011. At the request of the defendant, the matter was continued to the March docket call date. Again in March, the matter was continued, at the defendant's request, to the June 7, 2011 docket call. On June 7, 2011, counsel for the defendant appeared, and the defendant was ordered to appear June 10 for jury selection for the pending matter. On June 9, 2011, defendant filed the pending motion to dismiss. The motion to dismiss asserts that the defendant's right to equal protection was violated by the initiation of the pending criminal complaint by the Attorney General. Defendant's motion alleges, in part, "Upon information and belief, criminal prosecution is reserved for taxpayers who have failed to acknowledge their duties to file returns and pay taxes or fail to cooperate with the tax examiners assigned to their case by the Maine Revenue Service." Defendant's motion further alleges, "Defendant is being prosecuted as a consequence of his political affiliations and statements which conflicted with Assistant District Attorney John Pluto."l The morning after the motion was filed, on the day of jury selection on June 10, 2011, the State filed a written objection to the defendant's motion to dismiss. The State's objection disputed the assertions raised in the defendant's motion and further argued that the defendant's motion failed to demonstrate the elements necessary to show discriminatory prosecution as set forth in State v. Heald, 382 A.2d 290, 300-01 (Me. 1978). II. ANALYSIS Without addressing the substantive issues raised by the defendant's motion to dismiss or the State's opposition thereto, the court denies the defendant's motion to dismiss based upon its failure to comply with the provisions of Rules 12(b)(2) & (3) of the Maine Rules of Criminal Procedure. The issues raised within the defendant's motion to dismiss, filed the day before jury selection, would squarely fit within the type of defense or objection, based upon an alleged defect in the institution of the prosecution, that is contemplated by Rule 12(b)(2). That subsection of the Rule goes on to note, in pertinent part: "Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the w ai veL" 1 The defendant's motion was accompanied by no supporting affidavit, nor was any request for a hearing included with the motion. In a chamber conference at the time of jury selection on June 10, 2011, counsel for the defendant referred to wanting an evidentiary hearing on the issues raised in the defendant's pending motion to dismiss. 2 Rule 12(b)(3) of the Maine Rules of Criminal Procedure clearly requires that all motions shall be filed within twenty-one days after entry of a plea unless the court specifies a different time. As noted, the defendant's plea was entered in this matter on November 16, 2010, almost seven months before the filing of the motion to dismiss. The motion was not accompanied by any request for late filing, nor was there any demonstration of any cause for which such late filing would be justified? For the reasons stated, the defendant's motion to dismiss is DENIED. DATED: f t ~/t I 2 The purported bases for the motion to dismiss relates to information of which defendant was purportedly aware at the time the complaint itself was filed rather than the eve of jury selection. 3 SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CR-2010-00875 STATE OF MAINE vs ALAN F HARDING 5 BARTON STREET PRESQUE ISLE ME 04769 DOCKET RECORD DOB: 07/13/1953 Attorney: WALTER MCKEE LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 RETAINED 11/16/2010 State's Attorney: GREGG BERNSTEIN Major Case Type: MISDEMEANOR (CLASS D,E) Filing Document: CRIMINAL COMPLAINT Filing Date: 11/01/2010 Charge(s) FAILURE TO PAY TAX OR FILE RETURN 1 5332(1) Seq 9977 36 Class D 04/16/2005 AUGUSTA 2 FAILURE TO PAY TAX OR FILE RETURN 5332(1) Seq 9977 36 Class D 04/19/2006 AUGUSTA FAILURE TO PAY TAX OR FILE RETURN 3 5332 (1) Class D Seq 9977 36 04/18/2007 AUGUSTA FAILURE TO PAY TAX OR FILE RETURN 4 5332 (1) Class D Seq 9977 36 04/16/2008 AUGUSTA FAILURE TO PAY TAX OR FILE RETURN 5 5332 (1) Seq 9977 36 Class D 04/16/2009 AUGUSTA FAILURE TO PAY TAX OR FILE RETURN 6 5332(1) Seq 9977 36 Class D 04/16/2010 AUGUSTA 7 FAILURE TO PAY TAX OR FILE RETURN 5332 (1) Class D Seq 9977 36 04/16/2005 AUGUSTA FAILURE TO PAY TAX OR FILE RETURN 8 5332 (1) Seq 9977 36 Class D 04/19/2006 AUGUSTA FAILURE TO PAY TAX OR FILE RETURN 9 5332(1) Seq 9977 36 Class D 04/18/2007 AUGUSTA 10 FAILURE TO PAY TAX OR FILE RETURN Page 1 of 5 04/16/2008 AUGUSTA Printed on: 06/13/2011 ALAN F HARD I NG AUGSC-CR-2010-00875 DOCKET RECORD Seq 9977 36 5332 (1) Class D 11 FAILURE TO PAY TAX OR FILE RETURN 5332 (1) Seq 9977 36 Class D 04/16/2009 AUGUSTA 12 FAILURE TO PAY TAX OR FILE RETURN 5332(1) Seq 9977 36 Class D 04/16/2010 AUGUSTA Docket Events: 12/06/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 12/06/2010 @ 18:00 TRANSFERRED CASE: SENDING COURT CASEID AUGDCCR201002039 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 11/01/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - ARRAIGNMENT SCHEDULED FOR 11/17/2010 @ 10:00 in Room No. 1 NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - ARRAIGNMENT WAIVED ON 11/17/2010 Party(s) : STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 11/01/2010 Attorney: GREGG BERNSTEIN Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 SUMMONS/SERVICE - SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 11/01/2010 Party (s) : STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 11/01/2010 Attorney: EVERT FOWLE Party(s) : ALAN F HARDING ATTORNEY - RETAINED ENTERED ON 11/16/2010 Attorney: WALTER MCKEE Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 11/17/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 11/16/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH SCHEDULED FOR 01/04/2011 @ NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 Page 2 of 5 8:30 in Room No. 1 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD TRIAL - BENCH NOT HELD ON 12/06/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH NOTICE SENT ON 11/18/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/04/2011 @ 8:30 in Room No. 1 NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY NOT HELD ON 12/06/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY NOTICE SENT ON 11/18/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 12/06/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 12/06/2010 AUGSC 12/07/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL RECVD BY COURT ON 12/06/2010 AUGDCCR20102039 12/07/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL SCHEDULED FOR 01/04/2011 @ 10:00 12/07/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL NOTICE SENT ON 12/07/2010 12/28/2010 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 12/28/2010 Attorney: WALTER MCKEE 12/30/2010 MOTION - MOTION TO CONTINUE GRANTED ON 12/29/2010 M MICHAELA MURPHY , JUSTICE COPY TO PARTIES/COUNSEL 12/30/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL CONTINUED ON 12/30/2010 12/30/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL SCHEDULED FOR 03/09/2011 02/18/2011 MOTION - @ 2:00 MOTION TO CONTINUE FILED BY DEFENDANT ON 02/18/2011 02/22/2011 MOTION - MOTION TO CONTINUE GRANTED ON 02/18/2011 ROBERT E MURRAY JR, JUSTICE COPY TO PARTIES/COUNSEL 02/22/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL CONTINUED ON 02/18/2011 02/22/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 Page 3 of 5 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD TRIAL 02/22/2011 HEARING - DOCKET CALL SCHEDULED FOR 04/05/2011 @ 2:00 MOTION FOR DISCOVERY SCHEDULED FOR 04/05/2011 @ 1:00 NOTICE TO PARTIES/COUNSEL 04/06/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL CONTINUED ON 04/05/2011 04/06/2011 HEARING - MOTION FOR DISCOVERY NOT HELD ON 04/05/2011 04/06/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION FOR DISCOVERY GRANTED ON 04/05/2011 M MICHAELA MURPHY , JUSTICE COPY TO PARTIES/COUNSEL 04/06/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL SCHEDULED FOR 06/07/2011 @ 1:00 06/07/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL HELD ON 06/07/2011 06/07/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - JURY TRIAL SCHEDULED FOR 06/10/2011 @ 8:30 NOTICE TO PARTIES/COUNSEL 06/09/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 06/09/2011 06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - JURY TRIAL NOT HELD ON 06/10/2011 06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 REQUEST - WAIVER OF JURY TRIAL FILED ON 06/10/2011 06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 REQUEST - WAIVER OF JURY TRIAL APPROVED ON 06/10/2011 ROBERT E MURRAY JR, JUSTICE 06/10/2011 OTHER FILING - OTHER DOCUMENT FILED ON 06/10/2011 DA: GREGG BERNSTEIN STATE'S OBJECTION TO MOTION TO DISMISS 06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH SCHEDULED FOR 06/21/2011 @ 8:30 NOTICE TO PARTIES/COUNSEL 06/13/2011 OTHER FILING - OTHER DOCUMENT FILED ON 06/11/2011 DA: GREGG BERNSTEIN STATE'S OBJECTION TO MOTION TO DISMISS 06/13/2011 ORDER - COURT ORDER FILED ON 06/13/2011 ROBERT E MURRAY JR, JUSTICE ORDER DENYING MOTION TO DISMISS 06/13/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION TO DISMISS DENIED ON 06/13/2011 Page 4 of 5 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD ROBERT E MURRAY JR, JUSTICE COpy TO PARTIES/COUNSEL A TRUE COpy ATTEST: Clerk Page 5 of 5 Printed on: 06/13/2011

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