Eno v. State of Maine

Maine Superior

Eno v. State of Maine

Superior Court of Maine·Decided October 14, 2005·No. KENcr-03-318·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CRIMINAL ACTION

KENNEBEC. ss. DOCKET NO. CR-03-318

MICHAEL ENO, Petitioner

v. DECISION AND ORDER STATE OF MAINE, Respondent

T h s matter is before the court on amended petition for post-conviction review.

After hearing was held andmemorandum of law submitted, the matter is in order for determination, The petitioner was convicted under an indictment issued June 5, 2000, by the Kennebec County Grand Jury containing, in count I, a charge of theft by deception, class C, alleging that as part of a common scheme or course of conduct, he obtained cash by deception belonging to an insurance company in the year 1999. Count I1 charged a theft by deception, class B, alleging that in 1996 he obtained cash from another insurance company as a result of deception.'

As a result of a jury verdict, defendant was convicted of both counts receiving sentences to the Department of Corrections in both cases with a period of incarceration suspended and probation under count I and a consecutive fully suspended sentence in count I1 with further probation.

1 The state of the law at the time and the amount in question, $9,064.60, made the offense a class C offense. By typographical error, it was carried on in the indictment as a class B. The conviction and ultimate sentence were imposed as a class C offense. The Judgment and Commitment so reflect the same. In further recognition that petitioner was not prejudiced by the error in classification, upon petitioner's request for leave to appeal his sentence, it was denied. See Sentencing Transcript. p. 20.

In his amended petition, petitioner relies on four grounds for challenge of the validity of his conviction all based upon allegations of ineffective assistance of counsel. In ground one, petitioner challenges trial counsel's failure to file a motion to sever count I and count I1 given they were incidents alleged three years apart. In ground two, petitioner complains that trial counsel failed to request the court to instruct the jury as to a lesser-included offense on count I1 of the indictment because of an issue of value of the property whch was the subject of the theft. In ground three, petitioner complains that counsel's failure to move the court to amend count I1 of the indictment to reflect a class C offense affected the substantial rights of the petitioner. In ground four, petitioner complains that counsel was ineffective by failing to interview and produce exculpatory witnesses at trial. Even though ground three was argued at hearing, it is clear that the State recognized the typographical error, brought it to the court's attention at sentencing, and no rights of the petitioner in any way were affected by that error. Obviously, the jury was not aware of the classification of the offense charged. As to ground four, no testimony was rendered on behalf of petitioner with respect to the question nor was the matter argued and therefore the court considers it waived.

The standard for determining whether trial counsel's performance is ineffective for purposes of the Sixth Amendment to the United States Constitution and Article I, 5 6 of the Maine Constitution is a determination requiring a two-part inquiry:

(1) Has there been serious incompetency, inefficiency or inattention of counsel - performance by counsel whch falls measurably below that w h c h might be expected from an ordinary fallible attorney?

(2) Has such ineffective representation by counsel likely deprived the defendant of an otherwise available substantial ground of defense?

State v. Brewer, 1997 ME 177, 699 A.2d 1139 (1997), citing Lang v. Murch, 438 A.2d 914 and Strickland v. Washington, 466 U.S. 668 104 S.Ct. 2052 (1984). The claim of ineffective assistance of counsel requires the defendant to establish that h s attorney's performance deprived h m of a substantial ground of defense, or that counsel's performance likely affected the outcome of the trial. Failure to prove prejudice resulting from an attorney's performance precludes relief regardless of the quality of that performance. State v. Brewer, 699 A.2d at 1144. The court must accord trial counsel great deference in their tactical decisions and these decisions are reviewable solely for manifesst unreasonableness. Manifest unreasonableness only occurs when counsel's performance deprives the defendant of a substantial ground of defense. State v. Brewer, 699 A.2d at 1145. The burden is on the defendant to show not only that trial counsel's performance was deficient but also that the deficiency likely affected the outcome of the trial. Twist v. State of Maine, 617 A.2d 548 (1992).

At the outset, petitioner complains by his testimony that he did not have sufficient opportunity to fully discuss matters in preparation for trial. His testimony indicated that in spite of seven or eight months to prepare, he only saw h s attorney twice at the office and two or three times in court. He further indicated these were very short occasions and that many calls to his attorney provided no response. Trial counsel presented testimony based upon h s records that he had 17 telephone conferences with the petitioner between the period of May 2001 and March 2002, both long and short calls. On the two occasions in which they met and discussed strategy, the meeting of May 18 was one half hour and the meeting of May 30 was for one hour. He also testified that he sent 19 letters to the petitoner and that over a period of time there were eight court appearances at whch time discussion took place.

The first substantive issue is the complaint that his counsel did not bring a motion to sever count I from count I1 so that he was only tried on one count at a time. The terms of the counts in the indictment alleged that count I occurred in 1999 and count I1 occurred in 1996. It appears that the incident of 1999 was first brought to the attention of the authorities who then discovered the incident of 1996 as a result of investigation. Petitioner feels that there was a substantial prejudice created by i h s failure to sever and that it implied a continuing course of conduct unjustified by the evidence. Trial counsel believed, as a matter of trial strategy, first, that he would not be successful in bringing such a motion in spite of some degree of prejudice, that there was a similarity of witnesses and, further, and most important, counsel was concerned that the conduct of two trials as well as the period of time lapsing between the two trials would cause defendant to receive lengher consecutive sentences. In other words, by disposing of both matters at one proceeding, the court was more likely to fully suspend the sentence on count I1 and simply provide an adchtional period of probation.

It is difficult to conclude that the sentencing would have been different had the matters been severed. It is not unreasonable to draw an inference that if the defendant were convicted on count I at the first trial with the second count pending in another proceeding, that it might have affected the sentence whether as a result of the trial or a plea. Regardless of the assumptions made, the strategy employed by trial counsel was not unreasonable and was founded upon some practical considerations of handling a matter of criminal defense where there are multiple charges. It should also be noted that count I specifically alleged a scheme or course of conduct and that it was consistent with a related matter in terms of modus operandi occurring some three years later.

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