Palmer v. State of Maine

• Court: Superior Court of Maine
• Decided: January 23, 2014
• Docket: CUMcr-11-2145
• Status: Unpublished

Opinion

015s10

STATE OF MAINE cu~ ;~ s::: ~--. ~- .- ._ r-~ D, ss SUPERIOR COURT CUMBERLAND, ss C~ Et- :\! S· CF Fl CE CRIMINAL ACTION DOCKET NO. CR-11-21'45 1 " I 1\ll ....-- C ~_,,f f{J -- !Vt•l ! 1, l"::')'"~~· :(:JO {'-~I Z~Fl 0R:~ 23 Affj 10 38 / f JAMES PALMER,

Petitioner v. ORDER ON PETITION FOR POST -CONVICTION STATE OF MAINE REVIEW

Respondent

On 8/20/10, the petitioner pleaded guilty in CUMCD-CR-10-1630 to two charges

of class A robbery. The petitioner received a sentence of twenty years with all but seven

years suspended and four years of probation on each charge, to be served concurrently. 1

He also pleaded guilty to trafficking in dangerous knives, violation of condition of

release (CUMCD-CR-10-1069), forgery, violation of condition of release (CUMCD-CR-

10-2184), and violation of condition of release (CUMCD-CR-10-4058) and received

sentences to be served concurrently to the sentences on the robbery charges. He

pleaded to burglary and cruelty to animals charges in York County and received

sentences to be served concurrently to the sentences on the Cumberland County

charges.

In his petition for post-conviction review, the petitioner alleges the following:

1. he did not receive the promised good time agreed to at his sentencing hearing; 2. he received ineffective assistance of counsel because his trial attorney did not present evidence, witnesses, and mitigating factors at sentencing and did not file an appeal; 3. he received an excessive sentence; and

1 The petitioner filed a motion to correct or reduce the sentence but later withdrew the motion. 4. he was under extreme duress, did not understand what was happening at the sentencing proceeding, and was coerced by the threat of a twenty-year prison term.

For the following reasons, the petition is denied.

FINDINGS OF FACT

The petitioner met his trial attorney in March 2010 while the petitioner was

incarcerated. He did not expect to get off" because he was guilty of the charges and 11

just wanted to get his sentence." He believed the mitigating factors in his case included II

his admission of guilt and acceptance of responsibility and the fact that the crime spree

resulted from his drug addiction.

He met with his trial attorney again but alleged they never discussed the

discovery. He alleged also his trial attorney did not adequately investigate the case. On

cross-examination at the hearing on the petition for post-conviction review, the

petitioner admitted he had received the discovery and reviewed it several times. He

had questions but did not bring them to the attention of his trial attorney. The trial

attorney discussed the discovery with the petitioner and recalled the petitioner had a

difficult time discussing the evidence.

He also met with his trial attorney at court. The trial attorney had negotiated a

plea agreement of twenty years with all but six years suspended. The petitioner

rejected that offer because he concluded it was not a "good deal." His trial attorney did

not believe she would be able to obtain an offer much more favorable than the first

offer. The trial attorney had discussed the petitioner's working with the Maine Drug

Enforcement Agency. Both the petitioner and the MDEA were willing to cooperate.

The prosecutor objected and would not agree to allow the petitioner to be released on

bail to work with the MDEA.

2 The attorneys conferenced the case with a justice regarding an appropriate

sentence. After hearing the facts of the two robberies, the justice stated that the

sentences could be imposed to be served consecutively and he would reject any plea

agreement that did not include a sentence of eight years to be served initially. Because

the justice would not accept the plea agreement of twenty years with all but six years

suspended, the prosecutor offered a second plea agreement. 2 The trial attorney asked

the prosecutor to agree to the original offer but he refused. The trial attorney also tried

to schedule the case when the conferencing justice was not presiding; a different judge

conducted the Rule 11 proceeding.

The trial attorney believed the second offer was a good offer, as did the trial

attorney for the co-defendant. The facts of the two robberies were difficult for the

defense. The crimes involved substantial victim impact. (8/20/10 Tr. 10-13; 18-19.)

The petitioner confessed to the crimes after Miranda warnings were given. The plea ·

agreement was not premised on both defendants pleading guilty; the co-defendant was

likely available to testify against the petitioner.

The petitioner did not believe the circumstances of the crime warranted the

sentences proposed by the State. He complained his co-defendant pleaded and received

the same sentence, even though the co-defendant had a "much worse record," including

multiple felony convictions. The prosecutor told the judge at the Rule 11 proceeding

that the co-defendant had burglary and theft convictions eight years prior to the Rule 11

proceeding. (8/20 10 Tr. 17.)

2 The petitioner testified at the hearing on the petition for post-conviction review that the second offer was twenty years with all but eight years suspended. During the Rule 11 proceeding, the plea agreement involved a sentence of twenty years with all but seven years suspended.

3 The petitioner stated he did not discuss with his trial attorney his co-defendant's

plea agreement but his co-defendant's attorney advised the petitioner to accept the plea

offer. The co-defendant's attorney asked the petitioner how he would feel if his co-

defendant was released from incarceration and the petitioner was still incarcerated.

On the day of the plea, the petitioner's father was at Maine Medical Center

undergoing heart surgery and, as a result, the petitioner alleged he was not mentally

prepared to enter a plea. The trial attorney agreed she discussed the petitioner's

father's medical problems with the petitioner. In her estimation, however, he was

emotionally capable to go forward with the Rule 11 proceeding. If the trial attorney had

had concerns, she would have asked that the plea be rescheduled for another day, as

she has done previously in other cases. The trial attorney recalled the petitioner was

reticent on the day of the plea and was upset about the amount of time to be served

initially. He ultimately decided to accept the offer, however.

The trial attorney discussed with the judge at the Rule 11 proceeding

arrangements that had been made to permit the petitioner to visit his father. (8/20/10

Tr. 22.) The petitioner was taken by the Cumberland County Sheriff's Department to Maine Medical Center to see his father.

The trial attorney's overriding concern was the potential for the imposition of consecutive sentences on the two bb · th ro enes, as e conferencing justice had observed. In addition, the facts of the cruelty to animals charge . y k C . . m or ounty were distressmg. The prosecutor wanted a consecutive sentence on that charge. The animal control

officer appeared at every hearing on the case. The impact of a consecutive sentence when serving a Dep artm ent of Corrections . sentence · b IS su stantial and precludes participation in programs. Th trial e attorney believed she fought hard to negotiate concurrent sentences from a very determined assistant district attorn ey.

4 The transcript of the Rule 11 proceeding provides the judge confirmed the

sentence for the co-defendant was the sentence recommended for the petitioner.

(8120110 Tr. 4Y In response to the judge's questions, the petitioner answered he

understood what the State would have to prove beyond a reasonable doubt at trial and

the rights he was giving up by pleading to the charges and he agreed his pleas were

voluntarily made. (8120110 Tr. 7-9.) The petitioner denied taking any medications or

drugs during the preceding 48 hours. (8 I 20 I 10 Tr. 9.) In response to this question from

the presiding judge, "Is there anything about your physical conditions or emotional

conditions that affect either of your abilities to understand what we're doing?" the

petitioner answered, "No, sir." (8120110 Tr. 10.) The petitioner agreed he was given

sufficient time to speak to his trial attorney and he was satisfied with her services.

(8120110 Tr. 14.) The petitioner declined to say anything further during the

proceeding. (8120110 Tr. 14.)

The prosecutor outlined the basis for the plea agreement, in which the same

sentences were proposed for both defendants. The prosecutor agreed that the petitioner

had a limited prior history but had other matters pending that showed that he had

"been running afoul of the law quite a bit in the last number of months, even after these

incidents occurred." (8120110 Tr. 16.) Further, although the co-defendant had a more

serious record, the prosecutor believed the petitioner was the ringleader and was the

person in contact with the victims during the robberies. (8120110 Tr. 16.) Finally, the

co-defendant confessed immediately when confronted with the crimes, unlike the

petitioner. (8120110 Tr. 17.)

3 The Rule 11 proceedings for the petitioner and his co-defendant, Mr. Merritt, were combined. (8/20/10 Transcript.) It appears the entire transcript has not been provided to the court. The initial discussion regarding the co-defendant and the proposed sentences is missing.

5 With regard to his answers during the Rule 11 proceeding, the petitioner stated

at the hearing on the petition for post-conviction review that he had just agreed to a

sentence of twenty I seven and he "was not really thinking." Further, he stated he did

not know he could stop the proceeding because he was upset. He stated he did not

know anything about an appeal or how the system works. He testified if he had the

chance to do things again, he would not have accepted the plea offer.

CONCLUSIONS OF LAW

The petitioner must show that "(1) the performance of [his] attomey fell below

that of an ordinary fallible attomey; and (2) there is a reasonable probability that, but

for [his] attorney's error, [he] would not have entered a guilty plea and would have

insisted on going to trial." Aldus v. State, 2000 ME 47, C)[ 13, 748 A.2d 463. "[T]he test is

applied on a case-by-case basis, and evaluations of ineffective assistance of counsel

claims are 'guided by the overall justness and fairness of the proceeding."' McGowan v.

State, 2006 ME 16, C)[ 12, 894 A.2d 493 (quoting Aldus, 2000 ME 47, Cl[Cl[ 14-15, 748 A.2d

463). "'[R]easonable probability' is 'a probability sufficient to undermine confidence in

the outcome."' Laferriere v. State, 1997 ME 169, C)[ 8, 697 A.2d 1301 (quoting Strickland

v. Washington, 466 U.S. 668, 694 (1984)).

"A plea is valid if it is made voluntarily with knowledge of the elements of the

crime, the penalty that might be imposed and the constitutional rights relinquished by

foregoing trial." Laferriere, 1997 ME 169, C)[ 9, 697 A.2d 1301 (quoting State v. Comer,

584 A.2d 638, 640 (Me. 1990)).

The petitioner has not sustained his burden of proving "there is a reasonable

probability that, but for [his] attorney's error, [he] would not have entered a guilty plea

and would have insisted on going to trial." Aldus, 2000 ME 47, C)[ 13, 748 A.2d 463.

Accordingly, the merits of the ineffective assistance of counsel claim are not addressed.

6 See State v. Ali, 2011 ME 122, 9I 10, 32 A.3d 1019; State v. Jurek, 594 A.2d 553, 555 (Me.

1991) ("Failure to prove resultant prejudice precludes relief regardless of the quality of

counsel's performance."). The petitioner stated if he had the chance to do things again,

he would not have accepted the plea offer. He did not testify he would not have

pleaded guilty and would have insisted on going to trial. The trial would have been

difficult for the petitioner because the evidence against him was significant. Instead, as

the petitioner testified at the hearing on the petition for post-conviction review, he just

wanted to "get his sentence." This record makes clear the petitioner wanted an offer of

a more lenient sentence; such an offer was unobtainable.

Good Time

The petitioner claims he was promised nine days per month as good time at

sentencing. That claim is not supported by the transcript of the Rule 11 proceeding.

The fact that the petitioner would receive credit for time served pursuant to statute was

discussed at the proceeding. (8/20/10 Tr. 22; Judgment and Commitment dated

8/20/10.) No further evidence was presented at the hearing on the petition for post-

conviction review with regard to good time.

Sentencing

The petitioner argues his trial attorney did not present evidence, witnesses, and

mitigating factors at sentencing. (8/20/10 Tr. 406; 15-17.) This case involved a plea

agreement with regard to all the charges pending against the petitioner, as opposed to

an open plea or a cap plea agreement. Evidence, witnesses, and mitigating factors were

not required because the judge agreed with the proposed sentences. (8/20/10 Tr. 18.)

In any event, the evidence and witnesses the petitioner alleges should have been

presented at the Rule 11 proceeding were not offered at the hearing on the petition for

post-conviction review. Further, the mitigating factors discussed by the petitioner at the

7 hearing on the petition for post-conviction review, including his admission of guilt, his

acceptance of responsibility, and his drug addiction, were known to the Rule 11 judge.

(8/20/10 Tr. 7-8; 16-17.)

The petitioner alleges further in his petition for post-conviction review he

informed his trial attorney to file a direct appeal and she failed to follow his

instructions. At the hearing on the petition for post-conviction review, the petitioner

stated only that he did know anything about an appeal. Further, the petitioner did not

specify at the hearing on the petition for post-conviction review the grounds for the

appeal. See State v. Plummer, 2008 ME 22,

Sentence

The petitioner's primary complaint is that he received an excessive sentence,

essentially because he received the same sentence as his co-defendant. The prosecutor's

justification for the same sentences for the co-defendants was reasonable. (8/20/10 Tr.

15-17.) Further, the petitioner accepted the plea offer and entered a knowing and

voluntary plea with an understanding of the sentence that would be, and was, imposed.

The petitioner's additional argument that he received the statutory maximum for this

class of crime is incorrect. 17-A M.R.S. § 1252(2)(A).

Duress I Coercion

Except for the petitioner's testimony he was not mentally prepared to enter a

plea, nothing in this record shows the petitioner was under extreme duress or that he

did not understand the sentencing proceeding. He answered questions appropriately

during the Rule 11 proceeding. His trial attorney determined he was able to proceed;

she would have rescheduled the plea if she had had concerns.

The petitioner further argues he was coerced by the threat of a twenty-year

sentence. There is no evidence in the record regarding any such threat.

8 The entry is

The Petition for Post-Conviction Review i

Date: January 22, 2014 Nancy Mills Justice, Superior Court

CUMCD-CR-11-2145