STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CRIMINAL ACTION Docket No. CR-I0-875 ~~c'~ (i'\ . ,.~ . !<.~- 1':.0 / ' STATE OF MAINE
v. ORDER DENYING MOTION TO DISMISS ALAN F. HARDING,
Defendant
I. PROCEDURAL BACKGROUND
The complaint before this court was initially filed in the Augusta District Court
on or about November 1, 2010. On November 16, 2010, counsel for the defendant
entered an appearance, a waiver of the reading of the complaint, and an entry of a plea
of not guilty to all counts in the complaint. Defendant submitted a timely jury trial
request on or about December 3, 2010.
No motions were filed in the District Court prior to transfer to the Superior
Court. The matter was initially scheduled for a docket call in the Superior Court on
January 4, 2011. At the request of the defendant, the matter was continued to the March
docket call date. Again in March, the matter was continued, at the defendant's request,
to the June 7, 2011 docket call. On June 7, 2011, counsel for the defendant appeared,
and the defendant was ordered to appear June 10 for jury selection for the pending
matter.
On June 9, 2011, defendant filed the pending motion to dismiss. The motion to
dismiss asserts that the defendant's right to equal protection was violated by the
initiation of the pending criminal complaint by the Attorney General. Defendant's
motion alleges, in part, "Upon information and belief, criminal prosecution is reserved for taxpayers who have failed to acknowledge their duties to file returns and pay taxes
or fail to cooperate with the tax examiners assigned to their case by the Maine Revenue
Service." Defendant's motion further alleges, "Defendant is being prosecuted as a
consequence of his political affiliations and statements which conflicted with Assistant
District Attorney John Pluto."l
The morning after the motion was filed, on the day of jury selection on June 10,
2011, the State filed a written objection to the defendant's motion to dismiss. The State's
objection disputed the assertions raised in the defendant's motion and further argued
that the defendant's motion failed to demonstrate the elements necessary to show
discriminatory prosecution as set forth in State v. Heald, 382 A.2d 290, 300-01 (Me. 1978).
II. ANALYSIS
Without addressing the substantive issues raised by the defendant's motion to
dismiss or the State's opposition thereto, the court denies the defendant's motion to
dismiss based upon its failure to comply with the provisions of Rules 12(b)(2) & (3) of
the Maine Rules of Criminal Procedure. The issues raised within the defendant's
motion to dismiss, filed the day before jury selection, would squarely fit within the type
of defense or objection, based upon an alleged defect in the institution of the
prosecution, that is contemplated by Rule 12(b)(2). That subsection of the Rule goes on
to note, in pertinent part: "Failure to present any such defense or objection as herein
provided constitutes a waiver thereof, but the court for cause shown may grant relief
from the w ai veL"
1 The defendant's motion was accompanied by no supporting affidavit, nor was any request for a hearing included with the motion. In a chamber conference at the time of jury selection on June 10, 2011, counsel for the defendant referred to wanting an evidentiary hearing on the issues raised in the defendant's pending motion to dismiss.
2 Rule 12(b)(3) of the Maine Rules of Criminal Procedure clearly requires that all
motions shall be filed within twenty-one days after entry of a plea unless the court
specifies a different time. As noted, the defendant's plea was entered in this matter on
November 16, 2010, almost seven months before the filing of the motion to dismiss. The
motion was not accompanied by any request for late filing, nor was there any
demonstration of any cause for which such late filing would be justified?
For the reasons stated, the defendant's motion to dismiss is DENIED.
DATED: f t ~/t I
2 The purported bases for the motion to dismiss relates to information of which defendant was purportedly aware at the time the complaint itself was filed rather than the eve of jury selection.
3 STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. ALAN F HARDING Docket No AUGSC-CR-2010-00875 5 BARTON STREET PRESQUE ISLE ME 04769 DOCKET RECORD
DOB: 07/13/1953 Attorney: WALTER MCKEE State's Attorney: GREGG BERNSTEIN LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 RETAINED 11/16/2010
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 11/01/2010
Charge(s)
1 FAILURE TO PAY TAX OR FILE RETURN 04/16/2005 AUGUSTA Seq 9977 36 5332(1) Class D
2 FAILURE TO PAY TAX OR FILE RETURN 04/19/2006 AUGUSTA Seq 9977 36 5332(1) Class D
3 FAILURE TO PAY TAX OR FILE RETURN 04/18/2007 AUGUSTA Seq 9977 36 5332 (1) Class D
4 FAILURE TO PAY TAX OR FILE RETURN 04/16/2008 AUGUSTA Seq 9977 36 5332 (1) Class D
5 FAILURE TO PAY TAX OR FILE RETURN 04/16/2009 AUGUSTA Seq 9977 36 5332 (1) Class D
6 FAILURE TO PAY TAX OR FILE RETURN 04/16/2010 AUGUSTA Seq 9977 36 5332(1) Class D
7 FAILURE TO PAY TAX OR FILE RETURN 04/16/2005 AUGUSTA Seq 9977 36 5332 (1) Class D
8 FAILURE TO PAY TAX OR FILE RETURN 04/19/2006 AUGUSTA Seq 9977 36 5332 (1) Class D
9 FAILURE TO PAY TAX OR FILE RETURN 04/18/2007 AUGUSTA Seq 9977 36 5332(1) Class D
10 FAILURE TO PAY TAX OR FILE RETURN 04/16/2008 AUGUSTA Page 1 of 5 Printed on: 06/13/2011 ALAN F HARD I NG AUGSC-CR-2010-00875 DOCKET RECORD Seq 9977 36 5332 (1) Class D
11 FAILURE TO PAY TAX OR FILE RETURN 04/16/2009 AUGUSTA Seq 9977 36 5332 (1) Class D
12 FAILURE TO PAY TAX OR FILE RETURN 04/16/2010 AUGUSTA Seq 9977 36 5332(1) Class D
Docket Events:
12/06/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 12/06/2010 @ 18:00
TRANSFERRED CASE: SENDING COURT CASEID AUGDCCR201002039 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 11/01/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - ARRAIGNMENT SCHEDULED FOR 11/17/2010 @ 10:00 in Room No. 1
NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - ARRAIGNMENT WAIVED ON 11/17/2010
Party(s) : STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 11/01/2010
Attorney: GREGG BERNSTEIN Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 SUMMONS/SERVICE - SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 11/01/2010
Party (s) : STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 11/01/2010
Attorney: EVERT FOWLE Party(s) : ALAN F HARDING ATTORNEY - RETAINED ENTERED ON 11/16/2010
Attorney: WALTER MCKEE Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 11/17/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 11/16/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH SCHEDULED FOR 01/04/2011 @ 8:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 Page 2 of 5 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD TRIAL - BENCH NOT HELD ON 12/06/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH NOTICE SENT ON 11/18/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/04/2011 @ 8:30 in Room No. 1
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STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CRIMINAL ACTION Docket No. CR-I0-875 ~~c'~ (i'\ . ,.~ . !<.~- 1':.0 / ' STATE OF MAINE
v. ORDER DENYING MOTION TO DISMISS ALAN F. HARDING,
Defendant
I. PROCEDURAL BACKGROUND
The complaint before this court was initially filed in the Augusta District Court
on or about November 1, 2010. On November 16, 2010, counsel for the defendant
entered an appearance, a waiver of the reading of the complaint, and an entry of a plea
of not guilty to all counts in the complaint. Defendant submitted a timely jury trial
request on or about December 3, 2010.
No motions were filed in the District Court prior to transfer to the Superior
Court. The matter was initially scheduled for a docket call in the Superior Court on
January 4, 2011. At the request of the defendant, the matter was continued to the March
docket call date. Again in March, the matter was continued, at the defendant's request,
to the June 7, 2011 docket call. On June 7, 2011, counsel for the defendant appeared,
and the defendant was ordered to appear June 10 for jury selection for the pending
matter.
On June 9, 2011, defendant filed the pending motion to dismiss. The motion to
dismiss asserts that the defendant's right to equal protection was violated by the
initiation of the pending criminal complaint by the Attorney General. Defendant's
motion alleges, in part, "Upon information and belief, criminal prosecution is reserved for taxpayers who have failed to acknowledge their duties to file returns and pay taxes
or fail to cooperate with the tax examiners assigned to their case by the Maine Revenue
Service." Defendant's motion further alleges, "Defendant is being prosecuted as a
consequence of his political affiliations and statements which conflicted with Assistant
District Attorney John Pluto."l
The morning after the motion was filed, on the day of jury selection on June 10,
2011, the State filed a written objection to the defendant's motion to dismiss. The State's
objection disputed the assertions raised in the defendant's motion and further argued
that the defendant's motion failed to demonstrate the elements necessary to show
discriminatory prosecution as set forth in State v. Heald, 382 A.2d 290, 300-01 (Me. 1978).
II. ANALYSIS
Without addressing the substantive issues raised by the defendant's motion to
dismiss or the State's opposition thereto, the court denies the defendant's motion to
dismiss based upon its failure to comply with the provisions of Rules 12(b)(2) & (3) of
the Maine Rules of Criminal Procedure. The issues raised within the defendant's
motion to dismiss, filed the day before jury selection, would squarely fit within the type
of defense or objection, based upon an alleged defect in the institution of the
prosecution, that is contemplated by Rule 12(b)(2). That subsection of the Rule goes on
to note, in pertinent part: "Failure to present any such defense or objection as herein
provided constitutes a waiver thereof, but the court for cause shown may grant relief
from the w ai veL"
1 The defendant's motion was accompanied by no supporting affidavit, nor was any request for a hearing included with the motion. In a chamber conference at the time of jury selection on June 10, 2011, counsel for the defendant referred to wanting an evidentiary hearing on the issues raised in the defendant's pending motion to dismiss.
2 Rule 12(b)(3) of the Maine Rules of Criminal Procedure clearly requires that all
motions shall be filed within twenty-one days after entry of a plea unless the court
specifies a different time. As noted, the defendant's plea was entered in this matter on
November 16, 2010, almost seven months before the filing of the motion to dismiss. The
motion was not accompanied by any request for late filing, nor was there any
demonstration of any cause for which such late filing would be justified?
For the reasons stated, the defendant's motion to dismiss is DENIED.
DATED: f t ~/t I
2 The purported bases for the motion to dismiss relates to information of which defendant was purportedly aware at the time the complaint itself was filed rather than the eve of jury selection.
3 STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. ALAN F HARDING Docket No AUGSC-CR-2010-00875 5 BARTON STREET PRESQUE ISLE ME 04769 DOCKET RECORD
DOB: 07/13/1953 Attorney: WALTER MCKEE State's Attorney: GREGG BERNSTEIN LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 RETAINED 11/16/2010
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 11/01/2010
Charge(s)
1 FAILURE TO PAY TAX OR FILE RETURN 04/16/2005 AUGUSTA Seq 9977 36 5332(1) Class D
2 FAILURE TO PAY TAX OR FILE RETURN 04/19/2006 AUGUSTA Seq 9977 36 5332(1) Class D
3 FAILURE TO PAY TAX OR FILE RETURN 04/18/2007 AUGUSTA Seq 9977 36 5332 (1) Class D
4 FAILURE TO PAY TAX OR FILE RETURN 04/16/2008 AUGUSTA Seq 9977 36 5332 (1) Class D
5 FAILURE TO PAY TAX OR FILE RETURN 04/16/2009 AUGUSTA Seq 9977 36 5332 (1) Class D
6 FAILURE TO PAY TAX OR FILE RETURN 04/16/2010 AUGUSTA Seq 9977 36 5332(1) Class D
7 FAILURE TO PAY TAX OR FILE RETURN 04/16/2005 AUGUSTA Seq 9977 36 5332 (1) Class D
8 FAILURE TO PAY TAX OR FILE RETURN 04/19/2006 AUGUSTA Seq 9977 36 5332 (1) Class D
9 FAILURE TO PAY TAX OR FILE RETURN 04/18/2007 AUGUSTA Seq 9977 36 5332(1) Class D
10 FAILURE TO PAY TAX OR FILE RETURN 04/16/2008 AUGUSTA Page 1 of 5 Printed on: 06/13/2011 ALAN F HARD I NG AUGSC-CR-2010-00875 DOCKET RECORD Seq 9977 36 5332 (1) Class D
11 FAILURE TO PAY TAX OR FILE RETURN 04/16/2009 AUGUSTA Seq 9977 36 5332 (1) Class D
12 FAILURE TO PAY TAX OR FILE RETURN 04/16/2010 AUGUSTA Seq 9977 36 5332(1) Class D
Docket Events:
12/06/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 12/06/2010 @ 18:00
TRANSFERRED CASE: SENDING COURT CASEID AUGDCCR201002039 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 11/01/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - ARRAIGNMENT SCHEDULED FOR 11/17/2010 @ 10:00 in Room No. 1
NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - ARRAIGNMENT WAIVED ON 11/17/2010
Party(s) : STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 11/01/2010
Attorney: GREGG BERNSTEIN Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 SUMMONS/SERVICE - SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 11/01/2010
Party (s) : STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 11/01/2010
Attorney: EVERT FOWLE Party(s) : ALAN F HARDING ATTORNEY - RETAINED ENTERED ON 11/16/2010
Attorney: WALTER MCKEE Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 11/17/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 11/16/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH SCHEDULED FOR 01/04/2011 @ 8:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 Page 2 of 5 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD TRIAL - BENCH NOT HELD ON 12/06/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH NOTICE SENT ON 11/18/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/04/2011 @ 8:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY NOT HELD ON 12/06/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 HEARING - MOTION FOR DISCOVERY NOTICE SENT ON 11/18/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 12/06/2010
Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 12/06/2010
AUGSC 12/07/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRANSFER - TRANSFER FOR JURY TRIAL RECVD BY COURT ON 12/06/2010
AUGDCCR20102039 12/07/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL SCHEDULED FOR 01/04/2011 @ 10:00
12/07/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL NOTICE SENT ON 12/07/2010
12/28/2010 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 12/28/2010
Attorney: WALTER MCKEE 12/30/2010 MOTION - MOTION TO CONTINUE GRANTED ON 12/29/2010 M MICHAELA MURPHY , JUSTICE COPY TO PARTIES/COUNSEL 12/30/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL CONTINUED ON 12/30/2010
12/30/2010 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL SCHEDULED FOR 03/09/2011 @ 2:00
02/18/2011 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 02/18/2011
02/22/2011 MOTION - MOTION TO CONTINUE GRANTED ON 02/18/2011 ROBERT E MURRAY JR, JUSTICE COPY TO PARTIES/COUNSEL 02/22/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL CONTINUED ON 02/18/2011
02/22/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 Page 3 of 5 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD TRIAL - DOCKET CALL SCHEDULED FOR 04/05/2011 @ 2:00
02/22/2011 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 04/05/2011 @ 1:00
NOTICE TO PARTIES/COUNSEL 04/06/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL CONTINUED ON 04/05/2011
04/06/2011 HEARING - MOTION FOR DISCOVERY NOT HELD ON 04/05/2011
04/06/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION FOR DISCOVERY GRANTED ON 04/05/2011 M MICHAELA MURPHY , JUSTICE COPY TO PARTIES/COUNSEL 04/06/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL SCHEDULED FOR 06/07/2011 @ 1:00
06/07/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - DOCKET CALL HELD ON 06/07/2011
06/07/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - JURY TRIAL SCHEDULED FOR 06/10/2011 @ 8:30
NOTICE TO PARTIES/COUNSEL 06/09/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 06/09/2011
06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - JURY TRIAL NOT HELD ON 06/10/2011
06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 REQUEST - WAIVER OF JURY TRIAL FILED ON 06/10/2011
06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 REQUEST - WAIVER OF JURY TRIAL APPROVED ON 06/10/2011 ROBERT E MURRAY JR, JUSTICE 06/10/2011 OTHER FILING - OTHER DOCUMENT FILED ON 06/10/2011
DA: GREGG BERNSTEIN STATE'S OBJECTION TO MOTION TO DISMISS 06/10/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 TRIAL - BENCH SCHEDULED FOR 06/21/2011 @ 8:30
NOTICE TO PARTIES/COUNSEL 06/13/2011 OTHER FILING - OTHER DOCUMENT FILED ON 06/11/2011
DA: GREGG BERNSTEIN STATE'S OBJECTION TO MOTION TO DISMISS 06/13/2011 ORDER - COURT ORDER FILED ON 06/13/2011 ROBERT E MURRAY JR, JUSTICE ORDER DENYING MOTION TO DISMISS 06/13/2011 Charge(s): 1,2,3,4,5,6,7,8,9,10,11,12 MOTION - MOTION TO DISMISS DENIED ON 06/13/2011 Page 4 of 5 Printed on: 06/13/2011 ALAN F HARDING AUGSC-CR-2010-00875 DOCKET RECORD ROBERT E MURRAY JR, JUSTICE COpy TO PARTIES/COUNSEL
A TRUE COpy ATTEST: Clerk
Page 5 of 5 Printed on: 06/13/2011