O'Connor v. State of Maine
Opinion
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ERNEST O'CONNOR,
Petitioner
v. ORDER ON PETITION FOR POST-CONVICTION
STATE OF MAINE REVIEW
On 2/7/06, the petitioner attempted to plead guilty in CR-05-761 to class B aggravated assault, class B unlawful trafficking in schedule W drugs, class C operating under the influence, and class E violation of conditions of release. The court rejected the plea agreement, which included four years of incarceration with a consecutive five-year suspended sentence. On 2/9/06, the petitioner pleaded to the same four charges. He received concurrent sentences of six years, one year, and 60 days, respectively, of incarceration on aggravated assault, operating under the influence, and violation of conditions of release. On unlawful trafficking, he received a sentence of five years, all suspended, three years probation, to be served consecutively to the other three sentences.
The petitioner alleges he received ineffective assistance of counsel because trial counsel:
1. did not inform the court about the petitioner's medical condition at the time of sentencing;
2. refused to inform the court of the petitioner's poor health; and 3. revealed previously unknown and confidential information to the prosecutor, which led to a violation of the plea agreement; when the court declined to accept the
first plea agreement, the petitioner was compelled to plead guilty based upon a previous involuntary plea.
For the following reasons, the petition is denied.
FINDINGS The petitioner was arrested in December 2005 and indicted in December 2006.
By letter dated 12/15/05, the petitioner requested that his first attorney withdraw. The petitioner's second attorney, who is the subject of this petition, was appointed on 1/13/06. He pursued two tracks on the seven-count indictment: trial and plea. Trial counsel concluded that the petitioner had a chance to prevail at trial perhaps on the aggravated assault and unlawful trafficking charges but not on all seven charges.
The prospects for success at trial were diminished, however, by the necessity of the petitioner's testifying; he had a very significant prior criminal record spanning 28 years. (2/7/06 Tr. at 6, 12-14, 18.) In rejecting the first plea, the court concluded that the petitioner was a "career criminal." (Id. at 18.) The petitioner agreed to that characterization at the plea on 2/9/06. (2/9/06 Tr. at 15.)
The petitioner's case was listed on the docket call scheduled for 2/7/06. If a plea agreement had not been reached, trial counsel would have requested, appropriately, additional time to prepare because he had just received the case. 1 A plea agreement was reached the previous week, however. The petitioner was very interested in moving his case forward and faulted his first attorney for not pursuing the case expeditiously.
Trial counsel, in negotiating with the District Attorney, did not pursue a cap plea agreement because of the serious, permanent injuries to the police officer who was the victim of the aggravated assault charge, the number of charges, and the petitioner's
extensive criminal record. Trial Counsel wanted the District Attorney "on the same page."
Within the context of plea negotiations, trial counsel discussed with the District Attorney and members of his staff the weaknesses in the State's case. Trial counsel did not divulge his defense and did not inform the District Attorney that the petitioner had admitted his guilt. Trial counsel did not state to the petitioner that if the case proceeded to trial, counsel would have to withdraw his representation because he had discussed the defense with the District Attorney and members of his staff. Trial counsel did state that because the petitioner admitted that he was involved in drug trafficking, trial counsel would have to withdraw if the petitioner intended to testify differently at trial. Accordingly, trial counsel presented three options to the petitioner: (1) proceed to trial with trial counsel and not testify; (2) testify at trial but request another attorney and a continuance and remain in the jail; or (3) plead guilty and receive a Department of Corrections (DOC) sentence.
The first plea agreement was rejected by the court. (2/7/06 Tr. at 18.) The court indicated it would impose a six-year initial sentence, as opposed to the suggested four- year initial sentence. (rd. at 18-19.) Trial counsel then met with the petitioner, who decided to proceed with a plea with the understanding that he would in all likelihood receive the six-year sentence. The petitioner did not want a trial.
At the second Rule 11 hearing on 2/9/06, the petitioner addressed the court.
(2/9/06 Tr. at 14-16.) He did not mention his medical condition and stated that he was "very much so" satisfied with his trial counsel. (rd. at 16.)
I The petitioner cannot reasonably fault his second attorney for failing to be prepared for trial on the seven serious charges in the indictment within 24 days after appointment, especially because the late appointment of a second attorney resulted from the petitioner's request.
Trial counsel was aware of the petitioner's medical condition but that condition was not the main focus for counselor the petitioner at the time the pleas were entered. The medical condition was not discussed at either Rule 11 hearing. The extent of the petitioner's problems was not then known. Although the petitioner was "pretty sure" he had cancer, no diagnosis had been made, and a diagnosis was not made until three or four weeks after sentencing. (6/7/06 Tr. at 2-3.) Although the petitioner was anxious about his health, trial counsel believed the jail accommodated the petitioner's needs appropriately and that the petitioner's expectations were unreasonable. Trial counsel discussed with the petitioner that medical care at the DOC facilities was superior to that in the county jails. The petitioner testified at the hearing on the petition for post conviction review that he had been to the DOC previously and "had an idea" he would get better medical attention there. According to trial counsel, if the petitioner's diagnosis was, in fact, cancer, he would be better off at the DOC; if the diagnosis was not cancer, there was no reason to continue the sentencing.
The petitioner raised with trial counsel the issue of discussing his medical condition at the second Rule 11 hearing. Trial counsel advised that such an approach was not wise because the issue had not been raised at the first plea and highlighting medical problems could backfire. Further, arguing that the petitioner's medical condition was a mitigating factor was, in trial counsel's view, contrary to his goal, which was to convince the court that the defendant accepted responsibility for his actions.
The petitioner is intelligent and very experienced in, and knowledgeable about, the criminal justice system. During his criminal case, he asked questions, read the discovery, raised issues, made suggestions, and challenged trial counsel's advice and assumptions. The petitioner was very engaged in his defense.
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