Burd v. State of Maine

• Court: Superior Court of Maine
• Decided: April 3, 2012
• Docket: KENcr-11-321
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION DOCKET NO. CR-11f3~1 /\1/Ill - K_EN- I I t>f 3 z.oI 2..

STEVEN J. BURD, JR.,

Petitioner ORDER ON PETITION FOR v. POST-CONVICTION REVIEW

STATE OF MAINE

The petitioner challenges the use of his conviction for OUI in AUGDC-03-305 in

the indicbnent charging class C OUI in AUGSC-10-442. He argues that he did not

validly waive his right to counsel and his right to a jury trial. For the following reason,

the petition is granted.

FINDINGS

Attorney Steven Parker's calendar shows that he was the lawyer for the day in

the Augusta District Court when the petitioner's plea to OUI was entered on 2/19/03.

Attorney Parker's calendar shows further that he was scheduled to be in the Waterville

District Court at 1:00 p.m. on 2/19/03. Understandably, Attorney Parker has no

recollection of the events of that day.

The petitioner also did not remember everything that occurred on 2/19/03. He

did not recall being told about forms to fill out for an attorney and a jury trial. When his

name was called, he spoke to the judge. At that time, he had not spoken to the lawyer

for the day, who was not present, and the case was continued to the afternoon. The lawyer for the day did not return to the Augusta District Court for the afternoon of

2/19/03.

The petitioner spoke to the judge but cannot recall what the judge said. There is

no transcript of the proceedings.

The petitioner also spoke to the Assistant District Attorney. The petitioner does

not remember exactly what was said but "it didn't sound good." The petitioner

eventually pleaded guilty to the OUI charge.

Based on this record, the court concludes the petitioner never spoke to the lawyer

for the day. The court cannot conclude that the petitioner waived his right to counsel

and to trial voluntarily, knowingly, and intelligently. State v. Watson, 2006 ME 80, 9I 15,

900 A.2d 702, 708.

The entry is

The Petition for Post-Conviction Review is GRANTED. The OUI Convicition in AUGDC-CR-03-305 is stricken from the Indictment in AUGSC-10-442.

Date: April 3, 2012

2 STEVEN J BURD JR SUPERIOR COURT VS KENNEBEC, ss. STATE OF MAINE Docket No AUGSC-CR-2011-00321

DOCKET RECORD

PL. ATTY: CHARLES FERRIS State's Attorney: EVERT FOWLE FERRIS GURNEY AND CROOK PC 11 PARK STREET WATERVILLE ME 04901 APPOINTED 03/06/2012

Filing Document: PETITION Major Case Type: POST CONVICTION REVIEW Filing Date: 05/03/2011

Charge{s)

Docket Events:

05/03/2011 FILING DOCUMENT - PETITION FILED ON 05/03/2011

05/16/2011 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 05/16/2011

07/07/2011 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO DOCKET ON 07/01/2011

07/22/2011 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO JUSTICE ON 07/06/2011 ROBERT E MURRAY JR, JUSTICE 07/28/2011 POST CONVIC. REVIEW - RESPONSE TO PETITION FILED ON 07/25/2011

RESPONDENT'S MOTION TO DISMISS GROUNDS ONE AND TWO OF THE PETITION FOR POST CONVICTION REVIEW 07/28/2011 POST CONVIC. REVIEW - RESPONSE TO PETITION FILED ON 07/25/2011

RESPONDENT'S ANSWER TO THE PETITION FOR POST CONVICTION REVIEW DATED 4/27/11 07/28/2011 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 07/20/2011

08/15/2011 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 08/12/2011 ROBERT E MURRAY JR, JUSTICE COPY TO PARTIES/COUNSEL 08/15/2011 Party(s): STEVEN J BURD JR ATTORNEY - APPOINTED ORDERED ON 08/12/2011

Attorney: ARNOLD CLARK 09/29/2011 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO JUSTICE ON 09/29/2011 NANCY MILLS , JUSTICE AMENDED 11/08/2011 POST CONVIC. REVIEW- PCR CONFERENCE SCHEDULED FOR 12/20/2011 at 08:00 a.m. NANCY MILLS , JUSTICE 11/08/2011 POST CONVIC. REVIEW - PCR CONFERENCE NOTICE SENT ON 11/08/2011

12/20/2011 POST CONVIC. REVIEW - PCR CONFERENCE HELD ON 12/20/2011 NANCY MILLS , JUSTICE Attorney: ARNOLD CLARK DA: PAUL ROCHA 12/20/2011 POST CONVIC. REVIEW - ORDER RESULTING FROM PCR CONF FILED ON 12/20/2011 CR 200 Page 1 of 2 Printed on: 04/04/2012 STATE OF MAINE AUGSC-CR-2011-00321 DOCKET RECORD NANCY MILLS , JUSTICE 12/22/2011 HEARING - EVIDENTIARY HEARING SCHEDULED FOR 02/27/2012 at 01:00p.m.

NOTICE TO PARTIES/COUNSEL 12/22/2011 HEARING - EVIDENTIARY HEARING NOTICE SENT ON 12/22/2011

02/22/2012 MOTION - MOTION TO DISMISS FILED BY STATE ON 07/25/2011

DA: PAUL RUCHA 02/23/2012 CASE STATUS - CASE FILE LOCATION ON 02/23/2012

W/ J. MILLS FOR HEARING 03/05/2012 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 03/02/2012

03/29/2012 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 03/06/2012 M MICHAELA MURPHY , JUSTICE COPY TO PARTIES/COUNSEL 03/29/2012 Party(s): STEVEN J BURD JR ATTORNEY - WITHDRAWN ORDERED ON 03/06/2012

Attorney: ARNOLD CLARK 03/29/2012 Party(s): STEVEN J BURD JR ATTORNEY - APPOINTED ORDERED ON 03/06/2012

Attorney: CHARLES FERRIS 04/04/2012 HEARING - EVIDENTIARY HEARING HELD ON 02/27/2012 NANCY MILLS , JUSTICE DA: PAUL RUCHA Defendant Present in Court 04/04/2012 FINDING - GRANTED ENTERED BY COURT ON 04/03/2012 NANCY MILLS , JUSTICE THE PETITION FOR POST CONVICTION REVIEW IS GRANTED. THE OUI CONVICTION IN AUGDC-CR-03-305 IS STRICKEN FROM THE INDICTMENT IN AUGSC-CR-10-442 04/04/2012 ORDER - COURT ORDER ENTERED ON 04/03/2012 NANCY MILLS , JUSTICE ORDER ON PETITION FOR POST CONVICTION REVIEW

A TRUE COPY ATTEST: Clerk

CR 200 Page 2 of 2 Printed on: 04/04/2012