Collyer v. State of Maine

CourtSuperior Court of Maine
DecidedSeptember 28, 2009
DocketKENcr-08-096
StatusUnpublished

This text of Collyer v. State of Maine (Collyer v. State of Maine) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collyer v. State of Maine, (Me. Super. Ct. 2009).

Opinion

STATE OF MAINE f SUPERIOR COURT KENNEBEC, ss. CRIMINAL ACTION t\ c: \'. ~·"/V 11 ~~ck~! NOo.} ~,R-9809~~ .• ' , - r\ -L- IV ,/ C' ,/

- .. , ' DENNY COLLYER,

v. ORDER ON PETITION FOR POST-CONVICTION STATE OF MAINE, REVIEW

Defendant

By indictment dated 12/8/05, the petitioner was charged with two counts of

unlawful sexual contact, class C, alleged to have occurred between 7/1/01 and 8/23/03

with Anthony Laliberte named as the alleged victim in both counts. The State called

five witnesses in its case-in-chief and two in its rebuttal case. The petitioner was the

sole witness called by the defense. The petitioner was found guilty by a jury of both

counts in June 2006.

On 8/30/06, trial counsel was permitted to withdraw his representation of the

petitioner and successor attorneys were appointed. On 2/5/07, the petitioner was

sentenced to five years incarceration, all but three years suspended, and four years of

probation on count I and two years incarceration, all suspended, and four years of

probation on count II, to be served consecutively to the sentence on count 1.

The petitioner alleges he received ineffective assistance of counsel at trial as

follows:

1. trial counsel failed to call Chad Croxford and Dr. Anthony Mancini as

witnesses at trial;

2. trial counsel failed to present inconsistent statements from Branda Laliberte

and Anthony Laliberte regarding sexual abuse by the petitioner; 3. trial counsel failed to present testimony about a statement from Sheryl

Collyer;

4. trial counsel failed to challenge the investigating officer's questioning of the

petitioner; and

5. trial counsel failed to request that the court excuse juror #38 from the jury.

The petitioner alleges he received ineffective assistance on appeal as follows:

1. appellate counsel did not focus on inconsistencies that challenged the

credibility of witnesses; and

2. appellate counsel did not adequately present the issue of exclusion of juror

#38.

For the following reasons, the petition is granted in part and denied in part.

FINDINGS

Trial

The petitioner lived with and eventually married Sheryl Collyer. She had two

children, Branda and the alleged victim, Anthony Laliberte, born 8/24/92. All lived

together in Augusta.

The report of Detective Boivin contains statements from Branda and Anthony

Laliberte. (Pet. Ex. 3.) Some of these statements are inconsistent and contradict

testimony at trial. The report also contains statements from Branda Laliberte regarding

alleged sexual abuse of her by the petitioner. He was not charged with sexual abuse of

Branda Laliberte. Trial counsel did inquire on cross-examination with regard to some

of the inconsistent statements. (Trial Tr. at 74-75, 93-94.)

The petitioner hired the trial counsel's law firm to represent him in his divorce

and bankruptcy. After he was indicted for the unlawful sexual contact charges on

12/8/05, his divorce attorney at that firm suggested the petitioner hire trial counsel for

2 the criminal case. The petitioner and trial counsel appeared at the arraignment on

12/20/05 and the petitioner was released on unsecured bond. The petitioner was

arrested in June 2006 for violation of conditions of release and subsequently held

without bail until trial.

Throughout this representation, trial counsel had very limited contact with the

petitioner. (Pet.'s Exs. 5, 7.) During the period between the arraignment and the Rule

11 proceeding, the petitioner met very briefly with trial counsel after the docket call in

April 2006. Although trial counsel testified that he met with the petitioner five or six

times at the law firm, those meetings are not reflected on trial counsel's time sheets.

(rd.)

The attorney! who represented the petitioner in his divorce case met with the

petitioner regarding the criminal case, even though the divorce attorney previously

advised the petitioner to hire trial counsel because criminal law was "not her field." The

divorce attorney strongly suggested that the petitioner plead guilty, even though the

petitioner had not yet met with trial counsel to discuss the plea agreement. Both his

divorce attorney and trial counsel told the petitioner he would "go to prison" if he did

not plead? This advice was given in spite of the devotion of very little time to the case,

virtually no investigation of the case, and no interviews of witnesses.

After discussion with trial counsel for a few minutes at court, the petitioner

entered a plea of guilty to both charges on 6/8/06. He felt he had no choice; he knew

trial counsel did not know the case. The petitioner withdrew those pleas on 6/12/06.

The case was scheduled for expedited jury selection on 6/19/06 because the petitioner

was incarcerated.

! This attorney did not testify at the hearing on the petition for post-conviction review. 2 The plea agreement included a six-month sentence to be served initially.

3 The petitioner asked both his divorce attorney and trial counsel to request a

continuance of trial because he had had little contact with trial counsel. No motion was

filed. Trial counsel testified that he told the petitioner that the court would not continue

the case without a very good reason. If the court had been told that a continuance was

needed because the case was not ready for trial and that the petitioner agreed to the

continuance even though in custody, the case would have been continued.

The petitioner met with trial counsel at jury selection on 6/19/06 and for a short

period of time on 6/23/06 at the jail. The petitioner met with his divorce attorney

twice after he withdrew his pleas. That attorney discussed the police reports.

As a result of an accident in 1993, the petitioner injured his shoulder and could

not lift his left arm and had little range of motion. He sought medical attention for the

persistent pain and instability during 2002 from Dr. Anthony Mancini.3 Toward the end

of 2002, he underwent arthroscopic repair of the shoulder. He was given a sling and

instructed to avoid use of his left arm through January 2003. His shoulder discomfort

continued through 2004. (Pet.'s Ex. 1.)

After the alleged victim testified that the petitioner touched the alleged victim

when he was sleeping on the top bunk, the petitioner told his trial counsel about the

medical problems and the fact that he could not have reached up to the top bunk.

Although trial counsel knew about the shoulder injury before trial, the petitioner had

not told this particular theory to trial counsel before the trial because the petitioner

never had the opportunity to discuss the case fully. Although trial counsel testified that

he did not know before trial about the shoulder injury and the treatment by Dr.

Anthony Mancini, he agreed that the petitioner could have told the divorce attorney.

3 Dr. Mancini was subpoenaed to testify at the hearing on the petition for post-conviction review but failed to appear. The parties stipulated to the admission of the medical records. (Pet. Ex. 1.)

4 During the beginning of June 2006, the petitioner informed trial counsel about a

phone call made by his then ex-wife, Sheryl Collyer, to Tammy White. During the call,

Ms. Collyer stated that she was guilty of using the petitioner to get what she felt he

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Related

State v. McCurdy
2002 ME 66 (Supreme Judicial Court of Maine, 2002)
State v. Brewer
1997 ME 177 (Supreme Judicial Court of Maine, 1997)
Lagassee v. State
655 A.2d 328 (Supreme Judicial Court of Maine, 1995)
True v. State
457 A.2d 793 (Supreme Judicial Court of Maine, 1983)
State v. Harper
675 A.2d 495 (Supreme Judicial Court of Maine, 1996)
State v. Jurek
594 A.2d 553 (Supreme Judicial Court of Maine, 1991)
Kimball v. State
490 A.2d 653 (Supreme Judicial Court of Maine, 1985)
Aldus v. State
2000 ME 47 (Supreme Judicial Court of Maine, 2000)
McGowan v. State
2006 ME 16 (Supreme Judicial Court of Maine, 2006)
Doucette v. State
463 A.2d 741 (Supreme Judicial Court of Maine, 1983)

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