STATE OF MAINE RECEIY eo AO FILED SUPERIOR COURT
TONNE Ludi me A AOBL
ELC SUPERIOR COURT CRIMINAL ACTION
KENNEBEC, ss. . DOCKET NO. CR-04-84, /., 1 FEB-8 A BBUSP ep ee ee ADRIAN DOBSON, mens ae EIN Goivasy ur CGERT Petitioner Vv. as ait DECISION ON PETITION “yea 2 ve FOR POST-CONVICTION STATE OF MAINE, hae REVIEW Respondent MAY 3 05
This matter came before the court on the petition of Adrian Dobson for post- conviction review pursuant to 15 M.R.S.A. §§ 2121-2130. Dobson seeks a review of his conviction after a guilty plea of a charge of assault against his girlfriend, making it an assault of a domestic nature. The petitioner’s sole ground for review is ineffective assistance of counsel at the time of his plea. Dobson argues that his attorney was ineffective in that the attorney did not advise Dobson of the possible impact that his plea would have on Dobson's immigration status. Dobson is a citizen of Jamaica. The testimony of Mr. Dobson and his plea attorney, Stephen Bourget, was taken and other evidence, including the transcript of the plea of February 13, 2004, has been fully considered.
Facts
On Friday, February 13, 2004, Adrian Dobson appeared in the Augusta District Court for arraignment on a charge of assaulting one Gertrude Floyd. Stephen Bourget, Esq. was the attorney of the day present in the District Court to assist with six to eight defendants who were in custody awaiting arraignment. Attorney Bourget noticed that
Mr. Dobson is black and has an accent of some type. When asked where he had come
from, Dobson answered “New Hampshire.” Attorney Bourget advised Dobson to plead not guilty and that they would then argue for bail. Attorney Bourget was then called away to other business in the Superior Court and, on his return, was surprised to see Dobson about to appear before the judge. Dobson was asked how he wished to plea to which he responded, “I’d plead guilty, Your Honor.” There followed comments by attorney Bourget and Mr. Dobson which were indiscernible in the record, but, according to Mr. Bourget, cexpressing his surprise at the guilty plea and Dobson responding to him that he had negotiated the matter with the District Attorney and had to enter the guilty plea. Dobson then repeated the guilty plea. However, seconds later, after Dobson began to blame the victim for starting the altercation, the judge asked Dobson if he wanted to have a trial and whether he wanted to speak with his attorney about the situation until the trial date. Dobson declined.
Three or four days after the plea, Dobson visited his attorney asking to get the plea vacated on the ground that it would have an effect upon his immigration status and perhaps require his deportation to his homeland of Jamaica. According to attorney Bourget, whose testimony the court found to be credible, Dobson wanted the case “thrown out” because that is what had happened in his last case, apparently a plea in New Hampshire. When asked why he had not listed Jamaica as his place of birth on an intake form, Dobson stated that he could not give that information because he then would be unable to take the plea and get out of jail on the 13".
Discussion
In examining the question of effective assistance of counsel in the context of a plea, the court must consider first that the performance of his attorney was below that of an ordinary fallible attorney and that the petitioner was prejudice as a result of that performance. “[T]he petitioner had to show a reasonable probability that he would
have insisted on going to trial if he had received ineffective assistance of counsel.” Laferriere v. State, 697 A.2d 1301 (Me. 1997). The burden of proving both prongs of the test is on the petitioner.
Effective assistance of counsel in this area of criminal convictions and their effect on immigration status has been recognized in Maine. Aldus v. State, 748 A.2d 463 (Me. 2000). In other jurisdictions, courts have held that the immigration consequences of guilty pleas are collateral matters which would not give rise to a finding of ineffective assistance. Despite the Aldus decision, our Supreme Judicial Court has not gone that far. However, it is not necessary to analyze the attorney’s performance in the present case, since it is clear that he could not pass the second prong of the test.
Earlier cases have held that a failure to prove the requisite prejudice under the second prong of the test precludes relief regardless of the quality of the counsel’s performance. Brewer v. State, 1997 ME 177 { 20, 619 A.2d 1139, 1144; Pottious v. State, 1997 ME 234, J 9, 704 A.2d 1221, 1223. Based on the testimony of attorney Bourget, it is clear that Dobson knew about the possible consequences of his guilty plea at the time he entered his plea to the assault charge because he had been through the same process in a previous case in New Hampshire. Dobson’s present testimony that he would have pled not guilty and sought a trial if he had known about these consequences is belied by his actions when he entered his plea. It is clear from the testimony and the transcript that Dobson’s one goal on February 13, 2004, was to get out of jail regardless of what that entailed, even the immigration consequences about which he already knew. Therefore, Dobson cannot now claim that he would acted differently had the attorney informed him of what he already knew. The petitioner has failed to meet the tests
necessary for ineffective assistance of counsel under these circumstances.
The entry will be: Petition DENIED.
Dated: February 2, 2005 Media
S. Kirk Studstrup / Justice, Superior Court ADRIAN DOBSON SUPERIOR COURT
vs KENNEBEC, ss. STATE OF MAINE Docket No AUGSC-CR-2004-00084
DOCKET RECORD
PL. DOB: 04/20/1977
PL. ATTY: WILLIAM PAGNANO WILLIAM F. PAGNANO, ESQ 431 MAIN STREET ROCKLAND ME 04841 APPOINTED 04/22/2004
State's Attorney: EVERT FOWLE
Filing Document: PETITION Filing Date: 02/27/2004
Major Case Type: POST CONVICTION REVIEW
Charge (s)
Docket Events:
02/27/2004 FILING DOCUMENT - PETITION FILED ON 02/27/2004
03/02/2004 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 03/02/2004 03/25/2004 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO DOCKET ON 03/22/2004
03/25/2004 ORDER - COURT ORDER FILED ON 03/22/2004
POST CONVICTION ASSIGNMENT ORDE FILED AND INCORPORATED HEREIN BY REFERENCE, CASE ASSIGNED TO THE REGULAR CRIMINAL DOCKET; TIME LIMITS ESTABLISHED. 03/25/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 02/27/2004
03/26/2004 ORDER - SPECIAL ASSIGNMENT ENTERED ON 03/26/2004
JUSTICE S. KIRK STUDSTRUP ASSIGNED.
04/14/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL DENIED ON 04/14/2004 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL
04/23/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 04/22/2004 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES / COUNSEL
04/23/2004 Party(s): ADRIAN DOBSON ATTORNEY - APPOINTED ORDERED ON 04/22/2004
Attorney: WILLIAM PAGNANO 04/29/2004 AUDIT - AUDIT REPORT CHART _OF ACCOUNT EDI ON 04/29/2004 @ 9:37
RV APPR ABRV:GF; OLD OVERRIDE CODE:NONE; NEW OVERRIDE CODE:NONE; OLD AMT OVERRIDE:0; NEW AMT OVERRIDE:0; USER ID:CWILLARD
05/05/2004 MOTION - MOTION FOR ENLARGEMENT OF TIME FILED BY DEFENDANT ON 05/05/2004 05/05/2004 ORDER - TRANSCRIPT ORDER FILED ON 05/05/2004
COPY OF ORDER SENT TO ELECTRONIC RECORDING 05/06/2004 MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 05/05/2004 S KIRK STUDSTRUP , JUSTICE
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STATE OF MAINE RECEIY eo AO FILED SUPERIOR COURT
TONNE Ludi me A AOBL
ELC SUPERIOR COURT CRIMINAL ACTION
KENNEBEC, ss. . DOCKET NO. CR-04-84, /., 1 FEB-8 A BBUSP ep ee ee ADRIAN DOBSON, mens ae EIN Goivasy ur CGERT Petitioner Vv. as ait DECISION ON PETITION “yea 2 ve FOR POST-CONVICTION STATE OF MAINE, hae REVIEW Respondent MAY 3 05
This matter came before the court on the petition of Adrian Dobson for post- conviction review pursuant to 15 M.R.S.A. §§ 2121-2130. Dobson seeks a review of his conviction after a guilty plea of a charge of assault against his girlfriend, making it an assault of a domestic nature. The petitioner’s sole ground for review is ineffective assistance of counsel at the time of his plea. Dobson argues that his attorney was ineffective in that the attorney did not advise Dobson of the possible impact that his plea would have on Dobson's immigration status. Dobson is a citizen of Jamaica. The testimony of Mr. Dobson and his plea attorney, Stephen Bourget, was taken and other evidence, including the transcript of the plea of February 13, 2004, has been fully considered.
Facts
On Friday, February 13, 2004, Adrian Dobson appeared in the Augusta District Court for arraignment on a charge of assaulting one Gertrude Floyd. Stephen Bourget, Esq. was the attorney of the day present in the District Court to assist with six to eight defendants who were in custody awaiting arraignment. Attorney Bourget noticed that
Mr. Dobson is black and has an accent of some type. When asked where he had come
from, Dobson answered “New Hampshire.” Attorney Bourget advised Dobson to plead not guilty and that they would then argue for bail. Attorney Bourget was then called away to other business in the Superior Court and, on his return, was surprised to see Dobson about to appear before the judge. Dobson was asked how he wished to plea to which he responded, “I’d plead guilty, Your Honor.” There followed comments by attorney Bourget and Mr. Dobson which were indiscernible in the record, but, according to Mr. Bourget, cexpressing his surprise at the guilty plea and Dobson responding to him that he had negotiated the matter with the District Attorney and had to enter the guilty plea. Dobson then repeated the guilty plea. However, seconds later, after Dobson began to blame the victim for starting the altercation, the judge asked Dobson if he wanted to have a trial and whether he wanted to speak with his attorney about the situation until the trial date. Dobson declined.
Three or four days after the plea, Dobson visited his attorney asking to get the plea vacated on the ground that it would have an effect upon his immigration status and perhaps require his deportation to his homeland of Jamaica. According to attorney Bourget, whose testimony the court found to be credible, Dobson wanted the case “thrown out” because that is what had happened in his last case, apparently a plea in New Hampshire. When asked why he had not listed Jamaica as his place of birth on an intake form, Dobson stated that he could not give that information because he then would be unable to take the plea and get out of jail on the 13".
Discussion
In examining the question of effective assistance of counsel in the context of a plea, the court must consider first that the performance of his attorney was below that of an ordinary fallible attorney and that the petitioner was prejudice as a result of that performance. “[T]he petitioner had to show a reasonable probability that he would
have insisted on going to trial if he had received ineffective assistance of counsel.” Laferriere v. State, 697 A.2d 1301 (Me. 1997). The burden of proving both prongs of the test is on the petitioner.
Effective assistance of counsel in this area of criminal convictions and their effect on immigration status has been recognized in Maine. Aldus v. State, 748 A.2d 463 (Me. 2000). In other jurisdictions, courts have held that the immigration consequences of guilty pleas are collateral matters which would not give rise to a finding of ineffective assistance. Despite the Aldus decision, our Supreme Judicial Court has not gone that far. However, it is not necessary to analyze the attorney’s performance in the present case, since it is clear that he could not pass the second prong of the test.
Earlier cases have held that a failure to prove the requisite prejudice under the second prong of the test precludes relief regardless of the quality of the counsel’s performance. Brewer v. State, 1997 ME 177 { 20, 619 A.2d 1139, 1144; Pottious v. State, 1997 ME 234, J 9, 704 A.2d 1221, 1223. Based on the testimony of attorney Bourget, it is clear that Dobson knew about the possible consequences of his guilty plea at the time he entered his plea to the assault charge because he had been through the same process in a previous case in New Hampshire. Dobson’s present testimony that he would have pled not guilty and sought a trial if he had known about these consequences is belied by his actions when he entered his plea. It is clear from the testimony and the transcript that Dobson’s one goal on February 13, 2004, was to get out of jail regardless of what that entailed, even the immigration consequences about which he already knew. Therefore, Dobson cannot now claim that he would acted differently had the attorney informed him of what he already knew. The petitioner has failed to meet the tests
necessary for ineffective assistance of counsel under these circumstances.
The entry will be: Petition DENIED.
Dated: February 2, 2005 Media
S. Kirk Studstrup / Justice, Superior Court ADRIAN DOBSON SUPERIOR COURT
vs KENNEBEC, ss. STATE OF MAINE Docket No AUGSC-CR-2004-00084
DOCKET RECORD
PL. DOB: 04/20/1977
PL. ATTY: WILLIAM PAGNANO WILLIAM F. PAGNANO, ESQ 431 MAIN STREET ROCKLAND ME 04841 APPOINTED 04/22/2004
State's Attorney: EVERT FOWLE
Filing Document: PETITION Filing Date: 02/27/2004
Major Case Type: POST CONVICTION REVIEW
Charge (s)
Docket Events:
02/27/2004 FILING DOCUMENT - PETITION FILED ON 02/27/2004
03/02/2004 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 03/02/2004 03/25/2004 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO DOCKET ON 03/22/2004
03/25/2004 ORDER - COURT ORDER FILED ON 03/22/2004
POST CONVICTION ASSIGNMENT ORDE FILED AND INCORPORATED HEREIN BY REFERENCE, CASE ASSIGNED TO THE REGULAR CRIMINAL DOCKET; TIME LIMITS ESTABLISHED. 03/25/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 02/27/2004
03/26/2004 ORDER - SPECIAL ASSIGNMENT ENTERED ON 03/26/2004
JUSTICE S. KIRK STUDSTRUP ASSIGNED.
04/14/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL DENIED ON 04/14/2004 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL
04/23/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 04/22/2004 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES / COUNSEL
04/23/2004 Party(s): ADRIAN DOBSON ATTORNEY - APPOINTED ORDERED ON 04/22/2004
Attorney: WILLIAM PAGNANO 04/29/2004 AUDIT - AUDIT REPORT CHART _OF ACCOUNT EDI ON 04/29/2004 @ 9:37
RV APPR ABRV:GF; OLD OVERRIDE CODE:NONE; NEW OVERRIDE CODE:NONE; OLD AMT OVERRIDE:0; NEW AMT OVERRIDE:0; USER ID:CWILLARD
05/05/2004 MOTION - MOTION FOR ENLARGEMENT OF TIME FILED BY DEFENDANT ON 05/05/2004 05/05/2004 ORDER - TRANSCRIPT ORDER FILED ON 05/05/2004
COPY OF ORDER SENT TO ELECTRONIC RECORDING 05/06/2004 MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 05/05/2004 S KIRK STUDSTRUP , JUSTICE
Page 1 of 3 Printed on: 02/08/2005 06/17/2004
07/01/2004 07/01/2004
07/02/2004 07/20/2004
09/20/2004 09/20/2004 09/29/2004 12/07/2004
12/07/2004
12/07/2004 12/08/2004
12/22/2004
12/22/2004 01/18/2005
02/08/2005
COPY TO PARTIES/COUNSEL AUDIT REPORT CHART_OF ACCOUNT EDI ON 06/17/2004 @ 10:51
AUDIT -
RV APPR ABRV:GF; OLD OVERRIDE CODE:NONE; NEW OVERRIDE CODE:NONE; OLD AMT OVERRIDE:0;
AMT OVERRIDE:0; USER ID:CWILLARD
SUPPLEMENTAL FILING -
OTHER FILING -
ORDER -
AMENDED PETITION FILED ON 06/30/2004
COPY SENT TO ELECTRONIC RECORDING POST CONVIC. REVIEW -
STATE'S RESPONSE TO
POST CONVIC.
REVIEW
POST CONVIC. REVIEW S KIRK STUDSTRUP ,
Attorney:
DA: PAUL RUCHA
CONFERENCE HELD BY TELEPHONE.
HEARING -
PETITIONER'S AMENDED PETITION PCR CONFERENCE SCHEDULED FOR 10/08/2004 @ 8:15
WITNESS LIST FILED BY DEFENDANT ON 06/30/2004
TRANSCRIPT ORDER FILED ON 07/02/2004
RESPONSE TO PETITION FILED ON 07/19/2004
PCR
JUSTICE WILLIAM PAGNANO
NOTICE TO PARTIES/COUNSEL
S KIRK STUDSTRUP ,
DA: PAUL RUCHA Defendant Present in Court
WITNESSES:
CASE STATUS
FINDING -
JOHN R ATWOOD
PETITION DENIED
Receipts 04/29/2004
Reporter:
CONFERENCE NOTICE SENT ON 09/20/2004
CONFERENCE CONTINUED ON 09/29/2004 CONFERENCE SCHEDULED FOR 12/07/2004 @ 10:30
CONFERENCE HELD ON 12/07/2004
Attorney Payment
Page 2
of
READY FOR HEARING. EVIDENTIARY HEARING SCHEDULED FOR 12/21/2004 @ 9:00
EVIDENTIARY HEARING NOTICE SENT ON 12/07/2004 TRANSCRIPT FILED ON 12/08/2004
EVIDENTIARY HEARING HELD ON 12/21/2004 JUSTICE WILLIAM PAGNANO
JANETTE COOK
ADRIAN DOBSON AND STEPHEN BOURGET DECISION UNDER ADVISEMENT ON 12/21/2004 JUSTICE MEMORANDUM OF LAW FILED ON 01/18/2005
DENIED ENTERED BY COURT ON 02/08/2005 , JUSTICE
$25.00
paid.
STATE OF MAINE AUGSC-CR-2004-00084 DOCKET RECORD
Printed on:
NEW
02/08/2005 STATE OF MAINE AUGSC-CR-2004-00084 DOCKET RECORD
05/06/2004 Attorney Payment $25.00
paid. 05/13/2004 Attorney Payment $25.00 paid. 05/20/2004 Attorney Payment $25.00 paid. 05/27/2004 Attorney Payment $25.00 paid. 06/03/2004 Attorney Payment $25.00 paid. 06/10/2004 Attorney Payment $25.00 paid. 06/17/2004 Attorney Payment $25.00 paid. 07/02/2004 Attorney Payment $25.00 paid. 07/09/2004 Attorney Payment $25.00 paid. 08/05/2004 Attorney Payment $25.00 paid. 08/19/2004 Attorney Payment $25.00 paid. 09/03/2004 Attorney Payment $25.00 paid. 10/05/2004 Attorney Payment $25.00 paid.
A TRUE COPY ATTEST:
Clerk
Page 3 of 3 Printed on: 02/08/2005