State of Maine v. Hederson

• Court: Superior Court of Maine
• Decided: August 4, 2015
• Docket: CUMcr-15-1855
• Status: Unpublished

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. DOCKET NO. CR-15-1855

STATE OF MAINE

v. ORDER

GEORGE H. HEDERSON

George Hederson has been charged with violating a protection from abuse order

(Count I) and domestic violence assault (Count II). Hederson moves to dismiss Count I

on the grounds that a no-contact bail condition imposed by a New Hampshire court is not

a protection order within the meaning of Maine's Domestic Protection from Abuse Act,

19-A M.R.S. §§ 4001-4014, ("the Act") and thus cannot serve as the basis for the

criminal charge brought by the State.

The Act is civil rather than criminal in nature. Cooke v. Naylor, 573 A.2d 376,

3 77 (Me. 1990). Criminal penalties are only implicated where a valid protection order is

in place and is violated. !d. at 378. To obtain a protection from abuse order, a plaintiff

must prove an abuse allegation at a hearing by a preponderance of the evidence. 19-A

M.R.S. § 4006. The court may grant a protection order upon finding the defendant

committed the alleged abuse or engaged in the alleged conduct. 19-A M.R.S. § 4007.

New Hampshire has a similar protection from abuse statute. See RSA 173-B: 1. New

Hampshire law also requires the court to hold a hearing where the complainant must

prove abuse by a preponderance ofthe evidence. RSA 173-B:3.

On January 9, 2015, the State of New Hampshire charged the Defendant by

criminal complaint with one count of Simple Assault. On January 29, a bail commissioner set bail at $5,000 and the Defendant was ordered to have no contact with

the victim. The victim did not obtain a protection from abuse order pursuant to RSA 173-

B:l.

In order to be charged with violating a protection from abuse order, the Defendant

must have been subject to such an order. Although a protection from abuse order and a

condition of release prohibiting contact often have the same purpose and commands, they

are distinct and are penalized separately. State v. Falcone, 2000 ME 196, ~ 7 n.2, 760

A.2d 1046. They are also different procedural requirements to impose them.

The central issue presented by the Defendant's motion to dismiss is whether the

bail condition is "[a] temporary, emergency, interim or final protective order, an order of

a tribal court of the Passamaquoddy Tribe or the Penobscot Nation or a similar order

issued by a court of the United States or of another state, territory, commonwealth or

tribe." 19-A M.R.S. § 4011(1)(A). The court concludes that because no protection order

has been issued pursuant to RSA 173-B:1 or 19-A M.R.S. § 4007, the Defendant has not

violated a protection order within the meaning of the Act and therefore may not be

prosecuted pursuant to Section 40 11. The Defendant may instead be in violation of a bail

condition, for which the State of New Hampshire can initiate its own proceedings. See

State v. Nott, 821 A.2d 976, 978 (N.H. 2003).

In light of the foregoing, Count I must be dismissed.

The clerk shall make the following entry, by reference, on the docket:

The Defendant's motion to dismiss Count I is GRANTED.

);ft a.uiJl__ Dated: August 4, 2015

n. yce Wheeler Active Retired Justice, Superior Court

·"' i i i.Jt.~ ~~0PY /I ;,

2 Ai\est jadj ,?-" /~ {/ Clerk of Courts STATE OF MAINE CRIMINAL DOCKET vs CUMBERLAND, ss. GEORGE H HEDERSON Docket No CUMCD-CR-2015-01855 672 GARDNER HILL RD TAMWORTH NH 03886 DOCKET RECORD DOB: 05/23/1965 Attorney: DEVENS HAMLEN State's Attorney: STEPHANIE ANDERSON HEMINWA Y HAMLEN LAW CENTER PA 22 MONUMENT SQUARE SUITE 404 PO BOX4784 PORTLAND ME 04101 APPOINTED 04/06/2015 Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 04/06/2015 Charge(s) I VIOLATING PROTECTION FROM ABUSE ORDER 04/04/2015 PORTLAND Seq 12972 19-A 40 II (I) Class D JAYNES POR 2 DOMESTIC VIOLENCE ASSAULT 04/04/2015 PORTLAND Seq 11286 17-A 207-A(l)(A) Class D JAYNES POR Docket Events: 04/06/2015 FILING DOCUMENT- CRIMINAL COMPLAINT FILED ON 04/06/2015

04/06/2015 Charge(s): 1,2 HEARING- ARRAIGNMENT SCHEDULED FOR 04/06/2015 at 01:00p.m. in Room No. I

NOTICE TO PARTIES/COUNSEL 04/07/2015 Charge(s): I ,2 HEARING- ARRAIGNMENT HELD ON 04/06/2015 THOMAS D WARREN , JUSTICE DA: TRACY GORHAM Defendant Present in Court DEFENDANT INFORMED OF CHARGES. 21 DAYS TO FILE MOTIONS TAPECTRM I 04/07/2015 Charge(s): I ,2 PLEA- NOT GUILTY ENTERED BY DEFENDANT ON 04/06/2015 THOMAS D WARREN , JUSTICE 04/07/2015 BAIL BOND- $10,000.00 CASH BAIL BOND SET BY COURT ON 04/06/2015 THOMAS D WARREN , JUSTICE NO THIRD PARTY CASH BAIL. NO CONTACT JACQUELINE CARELLI 5/16/92. DRUG AND ALCOHOL CONDITIONS. 04/07/2015 Party(s): GEORGE H HEDERSON ATTORNEY- APPOINTED ORDERED ON 04/06/2015

Attorney: DEVENS HAMLEN 04/07/2015 HEARING- DISPOSITIONAL CONFERENCE SCHEDULED FOR 06/17/2015 at 08:30a.m. in Room No. 7

04/07/2015 Charge(s): I ,2 TRIAL- JURY TRIAL SCHEDULED FOR 07/27/2015 at 08:30a.m. in Room No. 11

NOTICE TO PARTIES/COUNSEL 06/17/2015 HEARING- DISPOSITIONAL CONFERENCE HELD ON 06/17/2015 WILLIAM BRODRICK , JUSTICE Attorney: DEVENS HAMLEN DA: KATHERINE TIERNEY CONF HELD, OFFER MADE. ATTORNEY WILL FILE MOTIONS. HEARING SET FOR 7-7- CR-200 Page I of 3 Printed on: 08/04/2015 GEORGE H HEDERSON CUMCD-CR-2015-01855 DOCKET RECORD 15 06/24/2015 MOTION- MOTION TO CONTINUE FILED BY STATE ON 06/22/2015

MOTION HEARING 7-7-15. 06/26/2015 MOTION- MOTION TO DISMISS FILED BY DEFENDANT ON 06/24/2015

06/29/2015 HEARING- MOTION TO DISMISS SCHEDULED FOR 07/07/2015 at 01:00p.m. in Room No.

NOTICE TO PARTIES/COUNSEL 06/29/2015 HEARING- MOTION TO DISMISS NOTICE SENT ON 06/29/2015

06/30/2015 MOTION- MOTION TO CONTINUE GRANTED ON 06/29/2015 ROLAND A COLE , JUSTICE COPY TO PARTIES/COUNSEL 06/30/2015 HEARING- MOTION TO DISMISS CONTINUED ON 06/29/2015 ROLAND A COLE , JUSTICE 06/30/2015 HEARING- MOTION TO DISMISS SCHEDULED FOR 07/14/2015 at 01:00p.m. in Room No. 1

NOTICE TO PARTIES/COUNSEL 06/30/2015 HEARING- MOTION TO DISMISS NOTICE SENT ON 06/30/2015

07115/2015 HEARING- MOTION TO DISMISS HELD ON 07114/2015 JOYCE A WHEELER , JUSTICE Attorney: DEVENS HAMLEN DA: KATHERINE TIERNEY Defendant Present in Court FTR CR#1 07115/2015 MOTION- MOTION TO DISMISS UNDER ADVISEMENT ON 07/14/2015 JOYCE A WHEELER , JUSTICE 07/15/2015 CASE STATUS- CASE FILE LOCATION ON 07/14/2015 DANIELLE MERRILL , ASSISTANT CLERK FILE IS WITH J. WHEELER. TAKEN UNDER ADVISEMENT ON MOTION TO DISMISS. 07/24/2015 Charge(s): 1,2 TRIAL- JURY TRIAL CONTINUED ON 06/17/2015

07/24/2015 Charge(s): 1,2 TRIAL- JURY TRIAL SCHEDULED FOR 08/10/2015 at 08:30a.m. in Room No. 11

NOTICE TO PARTIES/COUNSEL 08/04/2015 CASE STATUS- CASE FILE RETURNED ON 08/04/2015

08/04/2015 MOTION- MOTION TO DISMISS GRANTED ON 08/04/2015 JOYCE A WHEELER , JUSTICE COPY TO PARTIES/COUNSEL 08/04/2015 Charge(s): I FINDING- DISMISSED BY COURT ENTERED BY COURT ON 08/04/2015 JOYCE A WHEELER , JUSTICE MOTION TO DISMISS COUNT ONE IS GRANTED.

CR-200 Page 2 of 3 Printed on: 08/04/201.5 GEORGE H HEDERSON CUMCD-CR-20 15-01855 DOCKET RECORD

A TRUE COPY ATTEST: ------------------------ Clerk

CR-200 Page 3 of 3 Printed on: 08/04/2015