Bak v. State of Maine

• Court: Superior Court of Maine
• Decided: July 18, 2003
• Docket: CUMcr-01-1671
• Status: Unpublished

Opinion

SUPERIOR COURT

STATE OF MAINE CUMBERLAND, SS. CRIMINAL ACTION | 9) JULES Pk IF _, Docket No. CR-O11671 ¥ PEA CUB Tb 3 KEVIN BAK, DO, Petitioner v. DECISION AND JUDGMENT DOWALD L GARBRECHT STATE OF MAINE, LAW LipRary Respondent

AUG 13 2003

The petitioner was convicted on June 4, 1999, of assault (Class D), 17-A M.R.S.A. § 207. Upon his plea of guilty, Mr. Bak was sentenced to 120 days at the Cumberland County Jail. The sentence was suspended and he was placed on probation for the

period of one year. He was represented by counsel.

The petitioner subsequently filed a petition for post-conviction review stating

zt “1 . 4: . a. ” that there is a pendine a prosecution seeking his depor tation for which the that tnere 1s a pending a prosecutio exing nis de VOIcn

criminal judgment for assault is an element of the new federal proceeding.

Bak now asserts that the assault conviction was the result of a “misinformed guilty plea.” He seeks to have that judgment vacated and the case be returned to the

trial docket. The petitioner is not a United States citizen. As a result of the assault conviction, he is subject to deportation. He alleges that his attornev was ineffective in that he

found guiity of a “domestic assault” he would be subject to deportation and bein The State has moved to dismiss the petition alleging that he is not currently under any restraint as required by 15 M.R.S.A. § 2124, and that deportation proceedings

conducted by the Immigration and Naturalization Service are civil administrative hearings and are not the type of proceedings that are within the purview of a post-conviction petition. See Zadrydas v. Davis, 533 U.S. 578, 121 S.Ct. 2491 (2002).

Six months after the State filed its motion to dismiss, the petitioner filed a petition for writ of coram nobis acknowledging that Bak is not under any restraint that would allow relief pursuant to 15 M.R.S.A. § 2122 et seq.

In the alternative, he seeks a writ of coram nobis on the grounds that it is a remedy available when a person has completed his sentence and is no longer in custody, See United States v. Taylor, 413 F.Supp. 1403, 1404 (S.D. Fla. 1976), United States v. Morgan, 346 U.S. 502, 74, S.Ct. 247 (1954), and that the Maine Superior Court has allowed a writ of coram nobis when a non-citizen was convicted of a deportable crime and the sentence had already been served. See State v. Sam, Superior Court, York County, docket no. CR- 97-1718. Counsel fails to note, however, that in the Sam case the court approved the writ and subsequent dismissal “upon agreement of the parties.” In this case the petitioner has not provided a record as to the circumstances leading to the issuance of the writ and dismissal of Sam’s case or whether there were other considerations such as a new plea to a non-deportable offense.

The State objects to the issuance of a writ on the basis that the current Maine statutes for post-conviction review, 15 M.R.S.A. § 2121, et seq. are “the exclusive method of review of .. . criminal judgments and of post-conviction proceedings... .” The purpose of this post-conviction procedure was to replace the several and various procedures for post-conviction relief and to provide for 2 single comprehensive method of review. 15 M.R.S.A.§ 2122! The petitioner argues that this is effective only “to the extent that review of a criminal conviction or proceedings are reviewable,” and that

even though he is not under any present restraint or impediment, the remedy is still

*P.L. 1979, c.701 and P.L. 1997, ¢.399, § 1. unavailable. Citing United States v. Morgan. This, however, ignores the subsequent

enactment of section 2122 that makes direct reference to the point that it replaces, inter

alia, “remedies available pursuant to common law ...coram nobis... and any other

previous common law or statutory method of review ....”

The clerk will make the following entry as the Order and Judgment of the court: Respondent State of Maine Motion to Dismiss is

granted.

So Ordered.

DATED: July 14, 2003

Thomas E. Delahanty I Justice, Superior Court

a KOEUN BAK vs

SUPERIOR COURT CUMBERLAND, ss.

STATE OF MAINE Docket No PORSC-CR-2001-01671

PL. DOB: 1 PL. ATTY:

Filing Doc Filing Dat

DOCKET RECORD

0/06/1967 STUART TISDALE State's Attorney: STERHANIE ANDERSON

PORTLAND ME 04112

0 BOX s72, pte Study POO

RETAINED 10/19/2001

ument: PETITION Major Case Type: POST CONVICTION REVIEW

e: 10/19/2001

Charge (s)

Docket Events:

11/06/2001

11/28/2001

05/03/2002

05/21/2002

05/29/2002

05/30/2002

08/15/2002

FILING DOCUMENT - PETITION FILED ON 10/19/2001

NOTE - OTHER CASE NOTE ENTERED ON 11/06/2001

COPIES OF PETITION DOCKET ENTRIES COMPLAINT DOCKET ENTRIES SENT TO JUSTICE STUDSTRUP

LETTER - FROM PARTY FILED ON 11/28/2001

FROM LAW CLERK TO MR. TISDALE, REGARDING UNSIGNED PETITION

POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO DOCKET ON 05/03/2002 E ALLEN HUNTER , JUSTICE COPY SENT TO BOTH PARTIES.

POST CONVIC. REVIEW - RESPONSE TO PETITION FILED ON 05/20/2002

DA: JULIA SHERIDAN MOTION - MOTION TO DISMISS FILED BY STATE ON 05/20/2002

DA: JULIA SHERIDAN POST CONVIC. REVIEW - NOTICE TO REQ/DISPENSE CONF. SENT ON 05/21/2002

POST CONVIC. REVIEW - PCR CONFERENCE REQUEST FILED BY PETITIONER ON 05/29/2002

Attorney: MARY DAVIS POST CONVIC. REVIEW - PCR CONFERENCE REQUEST FILED BY STATE ON 05/30/2002

DA: JULIA SHERIDAN MOTION - OTHER MOTION FILED BY DEFENDANT ON 08/14/2002

Attorney: MARY DAVIS MOTION FOR EXPEDITED HEARING. OTHER FILING - OTHER DOCUMENT FILED ON 08/14/2002

Attorney: MARY DAVIS PETITIONERS OBJECTION TO RESPONDENTS MOTION TO DISMISS. OTHER FILING - OTHER DOCUMENT FILED ON 08/14/2002

DA: JULIA SHERIDAN

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