Collyer v. State of Maine

Maine Superior

Collyer v. State of Maine

Superior Court of Maine·Decided September 28, 2009·No. KENcr-08-096·Unpublished

Opinion

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

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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

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.

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.)

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 owed her; she had been and was manipulating the petitioner to get as much as she could from him. The call was recorded by Ms. White. These statements were discussed at trial at sidebar. (Trial Tr. at 138-147.) The court ruled that trial counsel would be allowed to inquire regarding Ms. Collyer's statements but the State's attorney would then be allowed to place the statement in context; the State argued that the petitioner had told Ms. White that he was charged with abusing Ms. Collyer and not her child because Ms. White had children. Trial counsel declined to use the tape at trial.

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