Cooper v. State of Maine

Maine Superior

Cooper v. State of Maine

DecidedJanuary 12, 2006

DocketKENcr-04-93

StatusUnpublished

This text of Cooper v. State of Maine (Cooper 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

Cooper v. State of Maine, (Me. Super. Ct. 2006).

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Opinion

STATE OF MAINE

KENNEBEC, SS. . . .-..n::c.-l'!rn ' ,.. - .- . . ,.. ,-..,- . LL! - . ...t . . L L d 6 .rp ,&,,:lij FILE <. .,-,- fSUPERIOR . - L F L ; < / ! ~ ;?~ MINALCOURT ACTION CKET NO. CR-04-93/94

PRESTON COOPER,

Petitioner

v. DECISION O N PETITION FOR POST-CONVICTION STATE OF MAINE, REVIEW

Respondent

T h s matter comes before the court on the petition of Preston Cooper for post-

conviction review pursuant to 15 M.R.S.A. §§ 2121-2130. The procedural hstory of Mr.

Cooper's convictions1 is well set out in the Post-Conviction Assignment Order dated

April 15, 2004, and will be incorporated herein. Suffice it to say that Cooper seeks

review of h s convictions, particularly with regard to the sentences on charges of

eluding an officer and unlawful trafficlung in schedule W drugs. These sentences were

ordered to be served consecutively, with the effect that Cooper would serve a total of

six years followed by a four-year period of probation. The petitioner's original petition

has been amended and h s original attorney has been replaced, factors w h c h have led

to some ambiguity as to the petitioner's grounds for post-conviction review. However,

judging by the petitioner's own testimony at hearing, it appears that h s current

concerns involve confusion at the time of sentencing as to what was going on and a

belief that he received ineffective assistance by appointed counsel.

Testimony was taken from the petitioner and h s previous attorney. The parties

also stipulated as part of the record transcripts of the proceedings pursuant to M.R.

1 This single decision incorporates petitions filed on two convictions of Mr. Cooper. See footnote 1 of the Post-Conviction Assignment Order. Crim. P. 11 and the sentencing hearing. In addition, admitted by agreement was a

series of five pieces of correspondence between the Assistant Attorney General, the

petitioner and the petitioner's attorney, all of whch has been considered by the court in

malung its decision.

With regard to the petitioner's first argument - that he was confused concerning

the sentencing process and did not receive a sentence in accordance with an agreement

- tlus argument is belied by the correspondence and transcripts. The correspondence

labeled plaintiff's exhbits 1-5 show a progression of negotiation between defense

counsel and the State and defense counsel's detailed explanation to the petitioner. It

would strain credulity to believe that anyone would believe that he was going to receive

a two-year sentence in light of the correspondence exchange. At the time of sentencing,

the court clearly announced a sentence w h c h involved a mixture of concurrent and

consecutive sentences w h c h would result in the petitioner serving six years, followed

by four years of probation. If the court's explanation of the sentence was not

sufficiently clear, that problem was alleviated by the petitioner's attorney at the end of

the sentencing as follows:

Mi-. Campbell: Judge, the total sentence actually in terms of time served that has been imposed I understand is a six-year time, that would be for credit for time served?

The Court: Six years and, obviously, credit for time served, yes.

Mr. Campbell: As a practical matter, four years of probation and four years suspended?

The Court: Correct.

Neither at tlus time nor during h s extended allocution, did the petitioner ever mention

any specific agreement or understanding on h s part that he was going to receive only a two-year sentence. The petitioner has simply failed to sustain h s burden of proof on

h s issue.

On the second issue - ineffective assistance of counsel - the court has also relied

upon the correspondence and the transcripts, as well as testimony by the witnesses.

The standard of review in a post-conviction case involving alleged ineffective assistance

of counsel is the following. The petitioner must demonstrate first that the performance

of the trial attorney was below that of an ordinary fallible attorney, and second, that the

attorney's performance deprived h m of a substantial ground of defense or likely

affected the outcome of the trial. State v. Brewer, 1997 ME 177, qIqI 19-20, 699 A.2d 1139,

1144. In the context of a plea situation, the "prejudice" inquiry becomes whether there

is "a reasonable probability (probability sufficient to undermine confidence in the

outcome) that, but for such ineffective representation the defendant would not have

pleaded guilty and would have insisted on going to trial." Laferriere v. State, 1997 ME

169, qIqI 17-18, 697 A.2d 1301; Aldus v. State, 2000 ME 47, qIq[ 13-20, 748 A.2d 463, 468,

471. In applying two-prong test, the United States Supreme Court has noted,

Judicial scrutiny of counsel's performance must be hghly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hndsight, to reconstruct the circumstances of counsel's alleged conduct, and to evaluate the conduct from counsel's perspective at that time . . . . There are countless ways to provide effective assistance in any gven case. Even the best criminal attorneys would not defend a particular client in the same way.

Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. 2052, 8 L.Ed.2d 674 (1984).

Looking at the present case, the court finds neither of the prongs of the test has

been satisfied. With regard to the "performance" prong, the record is clear that defense

counsel engaged vigorously in negotiations with the State and made what might be considered an impassioned argument to the court at the time of sentencing. The

attorney is highly experienced in such matters, and there is no evidence at any time that

he failed to communicate with the petitioner or misrepresent the State's position. The

attorney even showed care in malung certain of the combined effect of the sentences.

With regard to the "prejudice" prong, there is no evidence other than petitioner's self-

serving testimony at hearing that he would have insisted on a trial if he did not receive

a two-year sentence. A review of the documents shows that there was no serious

discussion of even the possibility of a two year sentence. The petitioner fails the test on

both prongs.

For the reasons stated above, the entry will be:

Petition DENIED.

Dated: January )Z. , 2006 / S. IGrk Studstrup Justice, superio; Court PRESTUN COOPER SUPERIOR COURT vs KENNEBEC, ss . STATE OF MAINE Docket No AUGSC-CR-2004-00094

DOCKET RECORD

PL. DOB: 06/07/1964 PL. ATTY: CAROL WEBB State's Attorney: EVERT FOWLE LAW OFFICES OF CAROL J. WEBB 237 MAIN ST WATERVILLE ME 04901 APPOINTED 01/13/2005 PL. ATTY: DAVID PARIS 72 FRONT STREET BATH ME 04530-2657 WITHDRAWN 11/18/2004

Filing Document: PETITION Major Case Type: POST CONVICTION REVIEW Filing Date: 03/15/2004

Charge ( s )

Docket Events:

03/15/2004 FILING DOCUMENT - PETITION FILED ON 03/15/2004

03/15/2004 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 03/15/2004

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