State of Maine v. Black
This text of State of Maine v. Black (State of Maine v. Black) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STATE OF MAINE SUPERIOR COURT CRINIINAL ACTION KENNEBEC, ss. DOCKET NO. CR-09-22 )111~ \ I ,.. 1"/ . . . . ('I ~/v!J--'L/,- 7 / iP/d'<-'~;. ! •
STATE OF MAINE
v. DECISION
WILLIAM BLACK,
Defendant
Before the court is the defendant's motion to strike prior convictions.
The defendant was indicted on an Operating Under Influence charge (class C)
based on three or more alleged prior OUI offenses. The State alleges four prior OUI
offenses. However, the defendant is challenging one conviction on July 28, 1999
(WATDC-CR-99-2137) and another conviction on April 25, 2001 (WATDC-CR-01-170).
The defendant pled guilty to both above offenses. The defendant asserts that he
was not represented by counsel during these convictions and did not knowingly or
intelligently waive his right to counsel.
Discussion
It is well established that the defendant has a right to counsel at all critical stages
of the criminal process. A waiver of that right must be voluntary, knowing, and
intelligent. Absent a waiver, the
lithe Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence. The judgment of conviction pronounced by a court without jurisdiction is void."
Johnson v. Zerbst, 304 U.s. 458, 468 (1938).
The Johnson court articulated a strong presumption against the waiver of the
fundamental constitutional right of right to counsel. The Maine case of State v. O~tlette, 2
901 A.2d 800 (Me. 2006) asserts that the court cannot assume the regularity of the
arraignment process or that the defendant had been advised of his right to be
represented by counsel. See also State v. Watson, 900 A.2d 702 (Me. 2006).
In this case, it is not clear whether the defendant was represented by counsel on a
conviction occurring in 2001 in Waterville District Court. The State has presented
evidence indicating that the defendant was represented by M. Dolly, acting as attorney
for the day. The court records for that conviction does not indicate that the defendant
was represented by anyone, not even the attorney for the day. Even if M. Dolly was
involved as the attorney for the day, the State v. Oulette case makes it clear that this is
not enough. In Oulette, the defendant met with the attorney for the day and the court
stated:
"We cannot presume, as we did in Gordon, that the attorney fulfill the duty of notifying Gulette about her constitutional rights, including her right to a jury triaL"
Oulette, at 809.
Since there is no transcript of the proceeding relative to the 2001 conviction and
since there is no evidence other than some evidence that the defendant was represented
by the lawyer for the day, the court finds that the defendant has proved that the
evidence does not establish that the defendant competently and intelligently waived his
constitutional right to assistance of counsel.
With regard to the 1999 conviction, the docket sheet indicates that the defendant
was not represented at all. Furthermore, there was an indication on the docket sheet
(State's Ex. 2), that the defendant waived his right to counsel. This entry was made by
the trial judge. This finding by the trial judge at the arraignment is evidence of the fact
that the defendant waived his right to counsel. In the Johnson case, the court states the
following: 3
liThe constitutional rights of an accused to be represented by counsel invokes, of itself, the protection of the trial court, in which the accused, whose life and liberty is at stake - is without counsel. This protecting duty imposes a serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. Or an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record."
Johnson, at 465.
Although the court makes a finding in this matter that the defendant waived his
right to counsel, the court's factual basis for the conclusion is not on the record.
Based on the above, the court hereby grants the defendant's motion to strike the
two prior convictions. It is hereby ORDERED that the two OUI convictions, the
conviction of July 28, 1999, and the conviction of April 25, 2001, shall be stricken from
the indictment.
Dated: ? -,& -Or
Attorney for the State
Paul Rucha, ADA Kennebec County Courthouse Augusta, ME 04330
Attorney for Defendant
Sherry Tash PO Box 192 Whitefield, ME 04353 STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. WILLIAM BLACK Docket No AUGSC-CR-2009-00022 554 VASSALBORO RD SOUTH CHINA ME 04358 DOCKET RECORD
DOB: 06/07/1956 Attorney: SHERRY TASH State's Attorney: EVERT FOWLE HAINKE & TASH PO BOX 192 WHITEFIELD ME 04353 APPOINTFD 01/14/2009
Charge(s)
1 OPERATE AFTER HABITUAL OFFENDER REVOCATION 12/17/2008 AUGUSTA 3 PRIOR Seq 11244 29-A 2557-A(2) (D) Class·C FRYE / AUG
Docket Events:
01/14/2009 Charge(s): 1 TRANSFER - PERMANENT TRANSFER EDI ON 01/14/2009 @ 18:00
TRANSFERRED CASE: SENDING COURT CASEID AUGDCCR200802851 FILING DOCUMENT - CASH BAIL BOND FILED ON 12/17/2008
01/14/2009 BAIL BOND - $500.00 CASH BAIL BOND FILED ON 12/18/2008
BAIL BOND - CASH BAIL BOND DISBURSEMENT ON 01/13/2009
Charge(s): 1 HE1,iUNG - INITIAL APPEARANCE SCHEDULED FOR 01/14/2009 @ 8:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL Charge (s): 1 HEARING - INITIAL APPEARANCE NOT HELD ON 01/14/2009
MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 01/14/2009
Chcirgc(s): 1 FINDING - PERMANENT TRANSFER TRANSFERRED ON 01/14/2009
AUGSC 01/22/2009 B!,lL BOND - $500.00 CASH BAIL BOND FILED ON 01/22/2009
Bail Receipt Type: CR B"il ,-,:llt: $500 Receipt Type: CK Date Bailed: 01/14/2009 Prvdr Name: PATRICIA GEARY Rtrn Name: PATRICIA GEARY
01/22/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 01/14/2009 RC~~~T E MULLEN • JUDGE
Page 1 of:3 Printed on: 07/06/2009 WILLIAM BLACK AUGSC-CR-2009-00022 DOCKET RECORD COPY TO PARTIES/COUNSEL 01/22/2009 Party(s): WILLIAM BLACK ATTORNEY - APPOINTED ORDERED ON 01/14/2009
Attorney: SHERRY TASH 01/22/2009 Charge (s): 1 HEARING - STATUS CONFERENCE SCHEDULED FOR 03/10/2009 @ 10:00
01/22/2009 Charge(s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 01/22/2009
02/20/2009 ORDER - TRANSCRIPT ORDER FILED ON 02/20/2009
REQUEST FOR TRANSCRIPT OF 7/28/99 PROVISION OF RIGHTS BY THE COURT FOR PLEA AND SSNTENCING; 4/25/01 PROVISION OF RIGHTS BY THE COUT AND PLEA AND SENTENCING. 2/24/09 COPY SENT TO ER 03/10/2009 Charge (s): 1 lIL;lJUNG - STATUS CONFERENCE HELD ON 03/10/2009 J(j~E,)Il M JAI3AR , JUSTICE Reporter: JANETTE COOK Defendant Present in Court 03/10/2009 Charge(s): 1 HUJUNG - STA'l'US CONFERENCE SCHEDULED FOR 04/14/2009 @ 10: 00
03/10/2009 C1Llr'.le (s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 03/10/2009
03/10/2009 Mehle:) - MOTION TO AfvIEND BAIL FILED BY DEFENDANT ON 03/09/2009
03/27/2009 Char'Je (s): 1 lll,i.:d:;,j - [iTATUS CONFERENCE NOT HELD ON 03/27/2009
03/27/2009 C]klL':!l': (s): 1 IILldUliG - AldVUGNMENT SCHEDULED FOR 04/14/2009 @ 10: 00
03/27/2009 CI1JLgc: (s): 1 HEARING - ARRAIGNMENT NOTICE SENT ON 03/27/2009
03/27/2009 Cl:. c'.l'- (s): 1 SUPPLEMENTAL FILING - INDICTMENT FILED ON 03/27/2009
04/16/2009 Charge(s): 1 H;:.'U ,:(; - !,RRAIGNMENT HELD ON 04/14/2009 L.... MILLS, JuSTICE R,->~)r::cr: TJJ~:~Y DROUIN
R:,DLJ.J WAIVED.
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