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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. UCD DOCKET NO. CR-12-7317
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STEVEN MORRILL 1:._ ,- c::: .' _.
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v. ORDER ON POST-CONVICTION REVIEW_ c:. :J STATE OF MAINE J)
PROCEDURAL BACKGROUND
Steven Morrill ("Morrill") was charged on February 2, 2011 in a three-count
complaint in Docket No. CUMCD-CR-11-1069 with Attempted Kidnapping (Class B),
Criminal Restraint (Class C) and Assault (Class C). On April 7, 2011, he was charged in
a three-count indictment with the same three counts that appeared in the complaint.
These charges stemmed from incidents between January 16 and February 16, 2011 in
Westbrook while a child was waiting for the school bus. The interactions were witnessed
by the child's mother and a neighbor, Elaina Young. Morrill acknowledged his
interaction with the child but denied any wrongdoing. Eventually on October 24, 2011,
in CUMCD-CR-11-1069 Morrill pled nolo contendere to count two of the indictment of
Class C Criminal Restraint, and in CUMCD-CR-11-6871 he pled nolo to a new
information charging Class C Terrorizing involving threats made against the victim and
two witnesses in CUMCD-CR-11-11069.
The court (Moskowitz, J.) sentenced him in CUMCD-CR-11-1069 to a five-year
period of incarceration with the Department of Corrections with all but eight months suspended and a two-year probationary term. In CUMCD-CR-11-6871, the court
sentenced him to a five-year period of incarceration all fully suspended and a two-year
probationary term, to be served concurrently with CUMCD-CR-11-1069. The state
dismissed the remainder of the indictment in CUMCD-CR-11-1069 as part ofthe plea
agreement. After being credited for time served, Morrill was released the same day as
the plea. Morrill did not appeal his convictions or the sentences. Morrill filed a petition
for post-conviction review on October 16, 2012.
GROUNDS ALLEGED
The petitioner filed the motion now before the court alleging ineffective
assistance of plea counsel on several grounds. Morrill states he had an agreement to
plead nolo to terrorizing only and the other 3 charges were to be dismissed, but that
Criminal Restraint was added at the last minute as part of his plea. Morrill also thought
that this charge was initially charged as an attempted crime and somehow the attempted
language was dropped. This claim has no merit because the only attempt charge was
Attempted Kidnapping and that charge was dismissed as part of the plea agreement.
Morrill also alleged that the key witness in CUMCD-CR-11-1069, Elaina Young,
recanted her statement to the police. This claim also has no merit as Young did not
change her testimony and was ready, willing and able to testify. (Tr. 14-15.)
Morrill also claims his plea counsel did not discuss the existing charges with him
before the plea. This will be discussed below.
Morrill amended his petition to add that his plea was not voluntary because (1) he
suffers from mental illness, including a serious anxiety disorder, (2) at the time of his
plea he had been incarcerated for 243 days while awaiting a trial, and (3) he was
2 pressured by his plea counsel to enter a plea that he did not want to make. He also points
out that he was medicated while being held at the jail. This claim will be discussed
below.
At the hearing on his petition on November 4, 2013, Petitioner presented the
transcript of the plea proceedings, the testimony of a friend Robert Ledoux, and his own
testimony. The State presented the testimony of plea counsel.
EVIDENCE AT PCR HEARING
At the PCR hearing, petitioner testified that plea counsel did not discuss the
charges, the alternatives and the consequences. According to Morrill, plea counsel only
discussed the nolo plea to terrorizing, but when he got into court, criminal restraint was
added. When he tried to talk to plea counsel about this charge, plea counsel responded,
"You want to get out of jail, don't you." Petitioner had been in jail 248 days at the time of
the plea and, according to Morrill, he had "about one-half a minute to make up his mind"
about accepting the plea deal. He admits that he learned from his plea counsel
approximately two weeks before his plea that he was being charged with terrorizing and
they discussed what would happen to the other charges if he pled to terrorizing. He
claims did not learn until the day of the plea that the other charges would not be
dismissed.
The case was on the trial list to pick a jury on the day of the plea. For several
days before the day of the plea, Morrill refused to speak with plea counsel. This was part
of a pattern. Counsel was turned away three times. Eventually, petitioner agreed to speak
with plea counsel. Morrill was angry and confrontational. He had a good grasp of the
issues but was very difficult to communicate with. He was not able to focus on what plea
3 counsel was trying to get him to focus on. Plea counsel admits that at some point earlier
in representing Morrill he may have said he would try to get all three of the other charges
dismissed, but the prosecutor would not consider dismissal of the charges in the
indictment. The prosecutor wanted 5 years even before the terrorizing charge arose.
Morrill wanted to talk about the discovery materials and his belief that someone had
altered the discovery. Plea counsel read the discovery that Morrill complained about; it
was material produced pursuant to the Clifford order and it contained nothing that would
benefit Morrill's case. Nothing in the discovery had been altered.
According to plea counsel, Morrill always claimed he was 100% innocent, but
when one assessed the pragmatic aspects of the case, he had already been in jail for eight
months and Morrill wanted out of jail. There was a big down side if Morrill lost at trial.
Morrill was making his decision based on getting out of jail. Plea counsel spoke with
Morrill for about one-halfhour on the day of the plea and did tell Morrill that if he takes
this plea he "would get out of jail today."
During plea negotiations, counsel discussed with the prosecutor the conduct and
the amount of time involved. He also discussed the case with other attorneys about the
minimum sentence because Morrill said he never grabbed the victim. The prosecutor
pointed out the statute required that he "entice" her and Morrill enticed her when he
offered to show the child puppies, bunnies or candy. Plea counsel spoke with Morrill's
friend Robert Ledoux, who testified that plea counsel said Morrill was looking at a lot of
time if he went to trial and was convicted, and that if he wanted to get out "today", he had
to accept this plea. Plea counsel and Morrill discussed a nolo plea because Morrill did
not want to admit to the charge but he wanted to get out of jail.
4 The state never offered to dismiss the three charges in the indictment because this
was a high profile case and Elaina Young, one of the witnesses, received a commendation
for her efforts to protect the child victim in this case. The prosecutor testified that Elaina
Young never recanted or changed her testimony and was available for trial. Before the
terrorizing charge came along, the prosecutor offered 5 years on criminal restraint with
all but two and one-half years suspended, two years of probation and he would dismiss
the kidnapping charge. Then he offered five years with all but a four-year cap or five
years with all but three years suspended. For plea counsel, the negotiations concerning
the indictment came down to pleading to criminal restraint and focus on getting Morrill
out of jail. The prosecutor always focused on criminal restraint and he was never going
to dismiss that charge. He would have gone to trial before he would dismiss the criminal
restraint charge. Then there was the terrorizing charge added to the mix.
There was also evidence at the PCR hearing concerning Morrill's complaint that
his plea counsel and an earlier counsel failed to discuss the problems that Morrill saw
with the indictment. Count 2 of the indictment charged Criminal Restraint in violation of
17-A M.R.S.A. § 302(1)(A)(4) and then recited the following language:
That on or about and between January 16, 2011 and February 16, 2011 in Westbrook, Cumberland County, Maine, STEVEN MORRILL did, knowing he had no legal right to do so, intentionally or knowingly take, retain or entice a minor whose date ofbirth is 10/12/05 and who was in fact less than eight years of age,from the custody of his parent, guardian or other lawful custodian, with the intent to hold the minor permanently for a prolonged period
Subsection 302(1)(A)(4) makes it a crime to knowingly take, retain or entice a minor who
is less than 8 years old; this subsection does not require that the minor be held
permanently for a prolonged period. Subsection 302(1)(A)(3), that was not charged,
5 requires that the minor be held for a prolonged period of time. According to Morrill, the
allegations in the indictment did not satisfy the elements of the statute. Morrill thought
he knew what the State needed to prove and he believed that the State could not meet its
burden of proving that Morrill held the minor for a prolonged period because he only
walked the five-year old victim a short distance down the street for a brief period of time.
According to plea counsel, however, Morrill's admission gave the prosecution a stronger
place to negotiate from in the plea negotiations since the prosecution could meet its
burden by proving "entice". Morrill did not deny being there and talking to the child. He
admitted "shaking hands with the child" and being in the vicinity and "walking by there
on a daily basis." The child's statements included allegations that Morrill offered her a
puppy, bunny or candy.
At the plea hearing, the plea judge engaged Morrill in a lengthy and thorough
Rule 11 colloquy as part of the felony plea to the charges in both cases. The court
explained the defendant's right to a grand jury and to waive indictment and proceed on
the information charging terrorizing. The prosecutor clarified that the information had
been corrected by crossing out six words. The judge inquired whether Morrill had
enough time to go over the charges in both docket numbers with plea counsel, to which
Morrill responded, "Yes." (Tr. 6.) The judge inquired of Morrill what his plea was to
Count Two of the indictment and to the single charge ofterrorizing in the information.
Morrill responded, "Nolo, your Honor." (Tr. 7.) The plea judge explained to Morrill
what the consequences are of pleading nolo contendere, and inquired if Morrill
understood this. Morrill again responded, "Yes, Your Honor." (Tr. 8.)
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The plea judge explained to Morrill the elements ofboth charges, including that
for criminal restraint, "The State would have to show that between the dates ofthe 16th of
January and February 16th of this year in Westbrook that you knew that you had no legal
right to take, retain or entice a minor child. So that means that they would have to show
that you were aware that it was practically certain that you didn't have any legal right to -
to take, retain or entice a minor child. That means somebody under the age of eighteen."
Morrill responded, "Right" when asked by the court if he understood that? (Tr. 8.) The
plea judge further inquired, "And they would have to show that, at that time, you were
either aware that it was practically certain or that it was your conscious purpose to take,
retain or entice a minor child, who was less that eight years of age, from the custody of
her parent. So do you understand that?" Morrill again responded, "Yes." (Tr. 9.) Finally,
with respect to the criminal restraint charge, the plea judge explained, "And they would
also have to show that you had a conscious purpose to hold the minor permanently or for
a prolonged period of time. So do you understand that?" Morrill again responded, "Yes."
(Tr. 9.)
When the plea judge inquired of the terrorizing charge and having two prior
convictions for assault, Morrill responded, "That isn't correct. I have, probably, a couple
of others but that what the State handed- (indiscernible) - I think I have two convictions
for assault. I'm not sure ... In discovery, I didn't receive all of my past charges." (Tr.
10.) Morrill responded that he understood that the State would have to show that there
were at least two prior convictions for assault. (Tr. 10.) The plea judge then reviewed
with Morrill the jury trial rights that he was giving up by pleading nolo contendere.
Morrill responded that he understood each of the rights he was giving up. (Tr. 10-13.)
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When asked by the plea judge, whether his pleas to these two charges were made
voluntarily and of his own free will and free choice, Morrill responded, "Yes, Your
Honor." (Tr. 13.) Morrill also stated that no one forced or threatened him to plead nolo
contendere to these charges. (Tr. 14.)
The prosecutor next recited the evidence to both charges, including the fact that
the victim in the criminal restraint charge made inconsistent statements about what the
defendant stated to her and that the person who reported the terrorizing statements was a
person in jail.
When the court inquired whether the prosecutor's recitation was consistent with
discovery, plea counsel responded, "Yes, it is, Your Honor, but I would add that it leaves
out quire a bit that left us with a highly defensible case and- for each of the two cases
and that's why we're having the nolo plea- pleas- in the nature of an [Alford] plea...
He's not admitting to any of this conduct. It's a highly defensible case, Judge, but he
wishes to enjoy the benefit of the bargainings that were offered in this case." (Tr. 17.)
When the judge indicated he understood, plea counsel continued, "We just wanted to
indicate, Judge, that part of the discovery indicated in the final statements that [the
prosecutor] gave, there's also an interview by the Spurwink social worker, in which the
child said that he never offered her anything. He never asked to take her anywhere. So
there are inconsistent statements throughout the case." (Tr. 17.) The prosecutor agreed
this was true and that is why they came up with the negotiation. Plea counsel explained,
"She directly said that- he directly - she directly said the child represented. He did not
grab her .... " (Tr. 17.)
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When the plea judge inquired ofMorrill whether he had enough time "to speak
about all these points in the discovery with [plea counsel]", Morrill responded, "Yes,
Your Honor." (Tr. 18.) The plea judge explained to Morrill, that plea counsel "just laid
out, in some detail, as to what those inconsistencies might be in the [discovery]," Morrill
interrupted the judge to say, "I want it down on record, yes, Your Honor." (Tr. 18.)
When the plea judge inquired whether there was anything Mr. Morrill would like
to say, Morrill responded, "I'd like to also have it known on record that the terrorizing
charge was made by a mentally ill inmate. And it was written by a detective of the
Westbrook Police Department and not by the person himself. But I'll go along with what
the statement is written, and some of it was deleted earlier ... It was written by a
detective of the Westbrook Police Department. It wasn't written by an inmate at the
Cumberland County Jail, who suffers from severe mental health issues ... And I want
that to be on the record because- but I am pleading nolo to that charge though." (Tr. 20.)
DISCUSSION
To determine whether Morrill received constitutionally ineffective assistance of
counsel, this court must examine:
[F]irst, whether there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance . . . below what might be expected from an ordinary fallible attorney; and second, whether any such ineffective representation likely deprived the defendant of an otherwise available substantial ground of defense.
Alexandre v. State, 2007 ME 106, ~ 43, 927 A.2d 1153, quoting Aldus v. State, 2000 ME
47, ~ 12, 748 A.2d 463. "[T]he federal and state guarantees are virtually identical."
McGowan v. State, 2006 ME 16, ~ 12, 894 A.2d 493. 1 "The burden is on the defendant
1 The test, as articulated by the United States Supreme Court is:
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to prove both prongs." !d. Generally, the court "begin[s] with the second prong
regarding prejudice because if it is determined that there was no prejudice, there is no
need to address the first prong regarding whether counsel's performance was deficient."
Francis v. State, 2007 ME 148, ~ 4, 938 A.2d 149.
The purpose of the constitutional requirement of effective counsel "in the context
of a conviction based on a guilty plea, is to ensure that the advice of counsel is within the
realm of an ordinary competent attorney because the voluntariness of the plea hinges
upon whether the advice is that of an ordinary competent attorney." Aldus, 2000 ME 47,
~15, 748 A.2d 463 (citing Hill v. Lockhart, 474 U.S. 52, 56-67 (1985)). The inquiry is
"whether the plea proceeding produced a just result which is the 'knowing and voluntary
entry of a guilty plea by a guilty party."' Id (quoting Laferriere, 1997 ME 169, ~11, 697
A.2d 1301).
Petitioner emphasizes in his PCR closing argument that plea counsel failed to
comply with M.R.Prof.C. 1.14 that requires an attorney representing a client with
diminished capacity to take reasonably necessary protective action. Such steps were
taken. Morrill had a competency and criminal responsibility evaluation. Morrill was
found competent. There is no evidence to show that Rule 1.14 applies to Morrill and his
status at the time of the plea. Morrill's claim on this point has no merit. A competency
evaluation during his incarceration concluded he was competent to stand trial. There was
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).
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nothing offered at the PCR hearing to contradict that finding of competency or to
substantiate a claim of involuntariness. There is nothing on the Plea Transcript to suggest
that Morrill did not make a knowing, willing and intelligent plea. At most there was
evidence that Morrill had a mental illness, was taking medications, had been in jail for a
long time awaiting trial and he was found competent. Morrill wanted to get out of jail and
was driven by that desire when he was offered a plea deal that would result in his release
the day of his plea. There is no evidence to support the claim that he was a client with a
diminished capacity as that term is intended in M.R.Prof.C. 1.14. Moreover, the plea
transcript discloses a defendant who understood fully what he was doing when he entered
a nolo plea and he was fully engaged in creating a record during the plea. (Tr. 18-20.)
A Maine lawyer is required to provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation. M.R.Prof.C. 1.1. Rule 1.1 (5)
sets forth the requirements for thoroughness and preparation:
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.
Plea counsel testified that he did not agree that Morrill was competent but the forensic
evaluation found him competent. Plea counsel did not agree with Morrill's focus on
getting out of jail. Plea counsel was trying to get all three charges in the indictment
dismissed, but that was never part of the State's offer. The prosecutor wanted five years
incarceration after trial. Plea counsel spoke with Morrill and his friend about the
possibility of a plea, but eventually the petitioner shut down and refused to speak with
plea counsel.
11 Plea counsel discussed the evidence in the case with Morrill when he was willing
to meet with him. Plea counsel also discussed with other attorneys whether the evidence
in CR-11-1 069 met the statutory defmition. The evidence was sufficient for the State to
prove "entice" under the statutory definition, given that the evidence showed that Morrill
offered the victim candy and perhaps a puppy or bunny. Eventually, plea counsel was
able to sit down with Morrill and discuss the cases with him. Morrill calmed down
enough to understand and proceed with the criminal matters, and ultimately chose to
plead nolo contendere to criminal restraint and terrorizing for a split sentence with time
served and probation conditions.
Plea counsel credibly testified that Morrill was very concerned about getting out
of jail and wanted to take advantage ofthe State's time served offer. After his plea to the
charges in this matter, Morrill sought to have plea counsel represent him on two of his
three motions to revoke probation and never made the claims about his plea counsel that
he now makes in his petition for post-conviction review. Petitioner did not file the
petition alleging ineffective assistance of counsel until almost a year after the pleas and
after the intervention ofthree probation revocations, two of which he was satisfied to be
represented by plea counsel. These facts undermine petitioner's argument that his plea
counsel was not competent or that his plea was not knowing or voluntary.
In this case, trial counsel's performance did not fall measurably below the
performance that might be expected of an ordinary, fallible attorney. This court
concludes that Morrill would have pled nolo, regardless of counsel's recommendations,
because he wanted to get out of jail that day. There is not a reasonable probability that,
but for counsel's errors, Morrill would not have pled guilty and would have insisted on
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proceeding otherwise. Morrill's plea represented a voluntary and intelligent choice to get
out of jail.
The Supreme Court has held that "the voluntariness of the plea hinges upon
whether the advice [of the defendant's attorney] is that of an ordinary competent
attorney." Hill, 474 U.S. at 56-67. In this case, a competent attorney would have done
precisely what plea counsel did here, that is caution the defendant about acting hastily to
get out of jail, try to negotiate with the prosecutor to get the charges in the indictment
dismissed, consult with other defense attorneys about the case, and in the end negotiate a
plea that met his client's objectives. Moreover, plea counsel was well versed in the
inconsistencies in the evidence and the risk of substantial prison time if Morrill were
convicted. There was no indication on the plea transcript that plea counsel had not done
his job or that Morrill was not adequately represented by competent counsel.
Morrill also raises as a competency issue plea counsel's failure to take action with
respect to the error in the language of the indictment. Count 2 of the indictment charged
Criminal Restraint in violation of 17-A M.R.S.A. § 302(1)(A)(4) as follows:
That on or about and between January 16, 2011 and February 16, 2011 in Westbrook, Cumberland County, Maine, STEVEN MORRILL did, knowing he had no legal right to do so, intentionally or knowingly take, retain or entice a minor whose date of birth is 10/12/05 and who was in fact less than eight years of age,from the custody of his parent, guardian or other lawful custodian, with the intent to hold the minor permanently for a prolonged period.
The indictment was correct in all respects until it erroneously added on the italicized
language from subsection 302(1)(A)(3). The indictment charges a violation of 17-A
M.R.S.A. § 302(1)(A)(4) and not of 17-A M.R.S.A. § 302(1)(A)(3). Subsection
302(1)(A)(3) was not charged and was not applicable to the evidence in this case. Count
2 as charged added extraneous language that the State was not required to prove for
13 criminal restraint of a five-year old child. The extraneous language about holding the
child for·a prolonged period of time only applies where the child was 14, 15 or 16 years
of age and simply did not apply to the facts of this case.
The discovery put everyone on notice that this crime involved a five-year old
child. The reports attached to the initial complaint set forth that the petitioner spoke with
a five-year old victim on more than one occasion at the end of her driveway while she
waited for the school bus. Petitioner was observed by a neighbor who told him to leave
the child alone. Later, he was observed by the girl's mother who told him to leave the
girl alone. The neighbor also saw petitioner take the girl's hand and start to lead her
away from the bus stop. The police were called. The child gave statements that
petitioner told her he had candy and a puppy or a bunny, although her statements were
inconsistent over time as pointed out by both plea counsel and Morrill. Petitioner's own
statements were that he did contact the girl multiple times at the bus stop and spoke with
her, putting him at the scene of the crime and setting forth he had contacted the girl.
Given the state of the evidence the extraneous language in the indictment had no impact
on the case, and did not provide some type of smoking gun defense that was missed by
the defense. Morrill alleges that plea counsel was ineffective in failing to bring the
extraneous language to the State's attention, but that language did not change the
circumstances of his plea. Morrill knew that he was charged with a felony, plea counsel
and the plea judge explained to Morrill that he was pleading to a felony and what the
requirements were to prove the crime charged, and Morrill stated that his plea was
voluntary and knowingly made. Under all of these circumstances, the court finds that
Morrill's plea was made knowingly, intelligently and voluntarily and his plea counsel's
14 performance was that of an ordinary competent attorney and no prejudice resulted from
plea counsel's representation.
The entry is: Post-Conviction Petition DENIED.
Date: July 10, 2014 ~A. Wheeler, Justice Maine Superior Court