State of Maine v. Christopher Shepard

2022 ME 11, 268 A.3d 274

• Court: Supreme Judicial Court of Maine
• Decided: February 3, 2022
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2022 ME 11 Docket: Cum-21-136 Argued: December 9, 2021 Decided: February 3, 2022

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

STATE OF MAINE

v.

CHRISTOPHER SHEPARD

CONNORS, J.

[¶1] Christopher Shepard appeals from a judgment of conviction for

gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2021), and sexual

misconduct with a child under twelve years of age (Class C), 17-A M.R.S.

§ 258(1-A) (2021), entered in the trial court (Cumberland County, Stewart, J.)

after a conditional guilty plea. On appeal, Shepard argues that the trial court

(French, C.J.) erred or abused its discretion in denying his motion to dismiss the

indictment based on an alleged violation of the Interstate Compact on

Detainers, 34-A M.R.S. §§ 9601-9636 (2021). We disagree and affirm.

I. BACKGROUND

[¶2] On June 9, 2017, a grand jury indicted Shepard on three counts of

gross sexual assault, 17-A M.R.S. § 253(1)(C), and one count of sexual 2

misconduct with a child under twelve years of age, 17-A M.R.S. § 258(1-A). The

indictment alleged that Shepard had engaged in sexual acts with a minor and

that Shepard had displayed sexually explicit materials to a minor under twelve

years of age with the intent of encouraging the minor to engage in sexual acts.

The court (Warren, J.) issued an arrest warrant, but Shepard was arrested on

separate charges in New York before Maine authorities were able to execute

the warrant.

[¶3] In November 2017, Shepard pleaded guilty in federal court in

New York to possession of child pornography, see 18 U.S.C.S. § 2252A(a)(5)(B)

(LEXIS through Pub. L. 117-80), and was sentenced to 180 months’

imprisonment in a federal correctional institution in New York.

[¶4] On June 14, 2018, the State of Maine lodged a detainer against

Shepard, seeking to have him brought to trial on the charges in the indictment.

On February 12, 2020, Shepard caused a letter to be delivered to the

prosecuting officer in Cumberland County—but not to the trial court—

requesting to be returned to Maine to face the charges against him pursuant to

Article III of the Interstate Compact on Detainers (the Compact). See

34-A M.R.S. § 9603(1). 3

[¶5] In early March 2020, however, the COVID-19 pandemic caused the

Maine Judicial Branch to take action to protect public health. On

March 13, 2020, the Maine Supreme Judicial Court issued an emergency order

postponing all jury trials, as well as the vast majority of criminal matters, until

May 1, 2020. See Emergency Order and Notice from Maine Supreme Judicial

Court Courthouse Safety and Coronavirus (COVID-19) at 1-3 (Mar. 13, 2020);

see also Revised Emergency Order and Notice from the Maine Supreme Judicial

Court Courthouse Safety and Coronavirus (COVID-19) at 1-2 (Mar. 18, 2020).

This order permitted parties who had “urgent and compelling reasons” for

needing in-person proceedings, including criminal trials, to petition the court

to hold those proceedings. See Emergency Order and Notice from Maine

Supreme Judicial Court Courthouse Safety and Coronavirus (COVID-19) at 2.

The suspension of jury trials was later extended until September 7, 2020. See,

e.g., PMO-SJC-1 State of Maine Judicial Branch Pandemic Management Order

at 3 (revised May 28, 2020). These orders did not toll any statutory deadlines.

See Emergency Order and Notice from Maine Supreme Judicial Court

Courthouse Safety and Coronavirus (COVID-19); see also PMO-SJC-2 State of

Maine Judicial Branch Pandemic Management Order at 4 (Mar. 30, 2020) 4

(extending deadlines established by court order or court rule but expressly not

extending statutory deadlines).

[¶6] Shepard was delivered to Maine and arraigned in July 2020. He

pleaded not guilty.

[¶7] Article III of the Compact sets a 180-day deadline for bringing

criminal defendants to trial when they properly request final disposition of the

charges against them.1 See 34-A M.R.S. § 9603(1). This period begins to run

when the defendant’s request is received by the prosecuting officer and the

appropriate court of the prosecuting officer’s jurisdiction. Id.; Fex v. Michigan,

507 U.S. 43, 52 (1993). If this deadline is not met, the charges against the

defendant must be dismissed with prejudice.2 34-A M.R.S. § 9605(3).

[¶8] There are two exceptions to this strict deadline. First, a court may

grant “any necessary or reasonable continuance” when “good cause [is] shown

in open court,” provided that the prisoner or his attorney is present, see id.

1This deadline is distinct from the 120-day deadline imposed by Article IV, which applies when the receiving state requests temporary custody of a defendant who does not seek final disposition of the charges against him. The 120-day period begins to run when the defendant arrives in the receiving state. See 34-A M.R.S. § 9604(3) (2021); see also State v. Reeves, 2022 ME 10, ¶ 18, --- A.3d ---. 2 Although dismissal with prejudice is still the remedy provided in Maine, 34-A M.R.S. § 9605(3)

(2021), the federal version of the Compact has been amended to give federal courts discretion as to whether dismissal for noncompliance with the Compact should be with prejudice or without prejudice when the receiving jurisdiction is the federal government. See 18 U.S.C.S. app. 2 § 9 (LEXIS through Pub. L. 117-80); see also United States v. Kelley, 402 F.3d 39, 41 (1st Cir. 2005). 5

§ 9603(1); see also id. § 9604(3). Second, the 180-day period is tolled

“whenever and for as long as the prisoner is unable to stand trial, as determined

by the court having jurisdiction of the matter.” See id. § 9606.

[¶9] Cognizant of this deadline, the State filed a motion to extend the time

to bring Shepard to trial pursuant to the “good cause” continuance provision.

See id. § 9603(1). In support of its motion, the State argued that the difficulties

in getting Shepard to Maine and the postponement of trial proceedings due to

the COVID-19 pandemic constituted “good cause” to extend the deadline. This

motion was filed on August 11, 2020—181 days after Shepard sent his letter to

the prosecuting officer. See M.R.U. Crim. P. 45(a) (providing guidelines for the

calculation of time).

[¶10] Shepard objected to the motion and moved to dismiss the charges

against him, arguing that there was no good cause for a continuance because

the delay was the fault of the State, which bore the burden of showing

compliance with the Compact and had allegedly failed to prioritize the case

against him.

[¶11] On September 25, 2020, after a hearing, the trial court (French, C.J.)

granted the State’s motion to extend time and denied Shepard’s motion to

dismiss. The trial court concluded that the postponement of judicial 6

proceedings due to the COVID-19 pandemic constituted good cause for a

continuance under 34-A M.R.S. § 9603, stating that “where the State was unable

to bring the defendant to trial because the courts had delayed all criminal jury

trials by emergency orders, the delay is reasonable and necessary.”

[¶12] On April 5, 2021, Shepard entered a conditional plea of guilty to all

counts of the indictment. The court (Stewart, J.) sentenced him to seven and a

half years’ imprisonment for each count of gross sexual assault and five years’

imprisonment for the sexual misconduct charge, all to be served concurrently

with each other and with Shepard’s ongoing 180-month sentence in federal

prison.3 Shepard timely appeals. See 15 M.R.S. § 2115 (2021); M.R.

App. P. 2B(b).

II. DISCUSSION

[¶13] Shepard argues that the continuance was ineffective because (A) it

was granted outside the 180-day period provided by Article III of the Compact

and (B) was unsupported by good cause. We disagree.

3The docket sheet erroneously states that Shepard was sentenced to seven and a half years’ imprisonment for the sexual misconduct charge. We direct the trial court clerk to correct that error. 7

A. We need not reach Shepard’s argument as to the timing of the good cause continuance because the clock to try him never began to run.

[¶14] Shepard asserts that the extension of time granted by the trial

court could not have extended the 180-day deadline because the extension was

not granted until after the deadline had expired on August 10, 2020. As a

threshold matter, we need not address this issue because the argument was

waived for want of development on appeal, given that it is only cursorily

mentioned in Shepard’s brief. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11 & n.6,

905 A.2d 290; State v. Brunette, 501 A.2d 419, 422 (Me. 1985).

[¶15] More fundamentally, the argument presupposes that Shepard

complied with the necessary procedures to start the running of the 180-day

deadline. This presupposition is unsupported by the record because Shepard

failed to comply with the procedural requirements of Article III. Hence, the

180-day period never began to run and, consequentially, the continuance was

not granted outside the 180-day period.

[¶16] Article III of the Compact allows a defendant to request final

disposition of charges pending against him in another jurisdiction by “caus[ing]

to be delivered to the prosecuting officer and the appropriate court of the

prosecuting officer’s jurisdiction written notice of the place of the [defendant’s]

imprisonment and the [defendant’s] request for final disposition,” after which 8

the State has 180 days to bring the defendant to trial. 34-A M.R.S. § 9603(1)

(emphasis added). If the notice and request for disposition are not delivered to

the appropriate court, the defendant has not complied with Article III and the

180-day period does not begin to run, even when the proper documents were

submitted to the prosecuting officer. See id.; United States v. Washington,

596 F.3d 777, 780-81 (10th Cir. 2010); United States v. Brewington, 512 F.3d

995, 997 (7th Cir. 2008); see also United States v. Dailey, No. 2:12-00110-01,

2013 U.S. Dist. LEXIS 51172, at *26-34 (S.D. W. Va. Apr. 9, 2013).4 It is not

enough for the defendant to show that the notice and request were transmitted

to the warden of the prison in which he is incarcerated—the burden is on the

defendant to show that delivery to the prosecuting official and the appropriate

court actually occurred. See Fex, 507 U.S. at 52; Washington, 596 F.3d at 780-81;

Brewington, 512 F.3d at 997.

[¶17] Shepard has not pointed to any part of the record that shows that

the notice and request were delivered to the trial court on February 12, 2020,

or, indeed, at all. Nor does the docket record or trial court file contain any

4The Compact is subject to federal construction because it is a congressionally-sanctioned agreement made pursuant to the Compact Clause of the U.S. Constitution, art. I, § 10, cl. 3. See New York v. Hill, 528 U.S. 110, 111 (2000); State v. Caulk, 543 A.2d 1366, 1368 (Me. 1988). 9

indication that the necessary documents were delivered to the court.5 At oral

argument, Shepard acknowledged that the notice and request were initially

delivered to the prosecution and not to the court, but hypothesized that the

court must have eventually received the notice and request because he was

ultimately brought to Maine for final disposition of the charges. This conjecture

is insufficient for Shepard to meet his burden. Shepard’s presence in Maine is

not proof of the delivery—at any time—of the necessary documents to the

court. See Fex, 507 U.S. at 52; Washington, 596 F.3d at 780-81; Brewington,

512 F.3d at 997.

B. The trial court did not err in denying Shepard’s motion to dismiss because there was good cause for a continuance.6

[¶18] Even if we assume that a Compact clock for commencing trial

began to run upon Shepard’s arrival in Maine, the trial court properly denied

Shepard’s motion to dismiss because there was good cause for a continuance.

The State represented at oral argument that it was not aware if the notice and request were ever 5

delivered to the court. 6Because we conclude that the 180-day period under Article III never began, see 34-A M.R.S. § 9603(1) (2021), it is possible that the continuance may not have been necessary at all. On the other hand, the continuance may still have been necessary if the 120-day deadline set forth in Article IV, see supra n.1, was triggered by Shepard’s arrival in Maine in July 2020. See 34-A M.R.S. § 9604(3). The applicability of the 120-day deadline was not briefed by the parties, and we need not reach this issue because we conclude that, in any event, there was good cause for the continuance. 10

[¶19] Rulings on motions to dismiss under the Compact are reviewed

de novo as to questions of law, for clear error as to factual findings, and for

abuse of discretion as to the ultimate decision. See United States v. Kelley,

402 F.3d 39, 41 (1st Cir. 2005); see also In re Children of Shirley T., 2019 ME 1,

¶ 19 n.9, 199 A.3d 221 (“Given the various components of a good cause

determination, we apply a mixed standard of review in this case. As with other

mixed questions of fact and law . . . we consider issues of law de novo, review

for clear error the court’s underlying factual findings, and otherwise review the

ultimate decision for an abuse of discretion.”).

[¶20] Neither the statutory language nor the legislative history of the

Compact provides guidance as to what constitutes good cause for a

continuance. See 34-A M.R.S. §§ 9603(1), 9604(3); Brown v. Wolff, 706 F.2d 902,

906 (9th Cir. 1983); see generally Council of State Gov’ts, Suggested State

Legislation, Program for 1957 (1956). Case law from other jurisdictions

indicates that, although the prosecution bears the burden of showing good

cause, see State v. Bury, 445 S.W.3d 594, 597 (Mo. Ct. App. 2014), a good cause

continuance can be granted for a variety of reasons so long as the extension is

reasonable or necessary, including for reasons unrelated to the conduct of the

defendant. For example, courts have granted good cause continuances when 11

witnesses for the prosecution were unavailable, see Bruce v. State,

781 A.2d 544, 551 (Del. 2001), abrogated on other grounds by Baker v. State,

906 A.2d 139, 150 n.20 (Del. 2006); when the trial judge was ill, see People v.

Watson, 650 P.2d 1340, 1343 (Colo. App. 1982); when a case was unusually

complex, see State v. Hill, 760 S.E.2d 802, 807 (S.C. 2014); and when additional

time for preparation was necessary in light of a prosecutor’s departure, see

State v. Clifton, 777 A.2d 1272, 1280 (R.I. 2001). Even a congested docket,

though it does not constitute per se good cause, can be sufficient if the trial

court takes affirmative steps to try the defendant within the applicable time

limit. See Haigler v. United States, 531 A.2d 1236, 1244 (D.C. 1987); United

States v. Ford, 550 F.2d 732, 743 (2d Cir. 1977).

[¶21] In contrast, delays that occur merely because of the State’s or the

court’s oversight do not constitute good cause for a continuance under the

Compact. See Commonwealth v. Wilson, 331 A.2d 792, 794 (Pa. Super. Ct. 1974)

(concluding that delay due to the unexplained inaction of the trial court was not

reasonable or necessary); Dennett v. State, 311 A.2d 437, 442 (Md. Ct. Spec.

App. 1973) (concluding that there was no good cause for an extension of time

based on the prosecution’s claim that it was unprepared for trial). 12

[¶22] Here, the trial court granted the continuance on the grounds that

“the delay was occasioned by the global COVID-19 pandemic, which is beyond

the control of all parties” and that “the State was unable to bring the defendant

to trial because the courts had delayed all criminal jury trials by emergency

orders, [and therefore] the delay is reasonable and necessary.” This

justification is sufficient to support a finding of good cause.

[¶23] In order to address the serious public health risks posed by the

COVID-19 pandemic and prevent the spread of disease, the Maine Supreme

Judicial Court issued pandemic management orders postponing jury trials until

September 7, 2020, at the earliest.7 See PMO-SJC-1 State of Maine Judicial

Branch Pandemic Management Order at 3 (revised May 28, 2020). Due to

concerns about the ability to hold proceedings safely, the judicial branch’s

phased management plan further extended the timeline for holding jury trials,

providing that only pilot trials could be held until October 19, 2020, see State of

Maine Judicial Branch COVID-19 Phased Management Plan at 12-13 (revised

July 31, 2020)—a limitation that was later extended until November 9, 2020,

We take judicial notice of the pandemic management orders and phased management plans 7

issued by the Maine Supreme Judicial Court as matters of public record. See Reeves, 2022 ME 10, ¶ 31 n.7, --- A.3d ---; D’Amato v. S.D. Warren Co., 2003 ME 116, ¶ 13 n.2, 832 A.2d 794. 13

see State of Maine Judicial Branch COVID-19 Phased Management Plan at 10-11

(revised Aug. 28, 2020).

[¶24] As a result of these pandemic management orders and plans, it

would have been exceptionally difficult—if indeed possible at all—to actually

hold a jury trial at the time that the court ruled on Shepard’s motion to dismiss

and the State’s request for an extension of time. This supports the

determination that good cause existed for the continuance.

[¶25] Moreover, this is not a case where the State’s oversight caused the

delay, cf. Dennett, 311 A.2d at 442, or where the trial court could have solved

the problem by reassigning cases, cf. Ford, 550 F.2d at 743. Instead, the trial

court and the State were responding to a crisis outside of their control—a crisis

that required unprecedented limitations on jury trials.

[¶26] Shepard’s contention that good cause did not exist because the

Supreme Judicial Court did not issue an order expressly finding good cause is

unavailing. Although this approach has been taken in other states, see In re

Court Operations Under the Exigent Circumstances Created by COVID-19 (Fourth

Extension of Standing Order 2020-12), No. 2021-04, 2021 U.S. Dist. LEXIS 46670,

at *9 (D.N.J. Mar. 11, 2021), it does not follow that a blanket order expressly 14

finding good cause or tolling the statutory deadline is necessary to support a

determination of good cause in a particular case.

[¶27] Accordingly, we conclude that the trial court did not abuse its

discretion in denying Shepard’s motion to dismiss based on the Compact

because the State met its burden of showing that good cause existed for an

extension of time.8

The entry is:

Judgment affirmed. Remanded to the trial court to correct the docket record to reflect that Shepard was sentenced to five years’ imprisonment—not seven and a half years’ imprisonment—for sexual misconduct with a child.

8The trial court also concluded that the “unable to stand trial” tolling provision in 34-A M.R.S. § 9606 (2021) did not apply because the delay was not occasioned by Shepard. Because we conclude that good cause existed for a continuance, we need not decide whether this conclusion was correct or address Shepard’s argument that “trial” should be interpreted to include the plea-bargaining process. We note, however, that in State of Maine v. Carine Reeves, we conclude that a defendant was unable to stand trial from March 13, 2020, to September 7, 2020—the period when the Maine Supreme Judicial Court’s pandemic management orders precluded jury trials. See Reeves, 2022 ME 10, ¶ 33, --- A.3d ---. 15

Robert C. Andrews, Esq. (orally), Portland, for appellant Christopher Shepard

Jonathan Sahrbeck, District Attorney, and Angela Cannon, Asst. Dist. Atty. (orally), Prosecutorial District No. 2, Portland, for appellee State of Maine

Cumberland County Unified Criminal Docket docket number CR-2017-3236 FOR CLERK REFERENCE ONLY