ORDER ON POST-CONVICTION REVIEW
Joyce A. Wheeler, Justice Maine Superior Court
Devra Lee Koromanian ("Koromanian") pled guilty on January 24, 2012 to two counts of a seven-count indictment. She pled guilty to Reckless Conduct With A Dangerous Weapon (Class C), 17-A M.R.S.A. § 211(1), and Operating Under the Influence - No Test, 1 Prior (Class D), 29-A M.R.S §(1 -A)(C)(2). The court (Moskowitz, J.) sentenced her to an eighteen-month period of incarceration with the Department of Corrections with all but fifty days suspended and a two-year probationary term on Count I and to thirty days concurrent on Count III together with a $900 fine, plus applicable surcharges and assessments. This was a time served sentence. The state dismissed the remaining five charges in the indictment, including one felony as the result of the plea agreement. This sentence was also made concurrent with SOPSCCR-11-253, including two charges of terrorizing and forgery to which she pled guilty on December 16, 2011. Koromanian did not appeal her conviction or the sentence to the Law Court.
Koromanian filed a timely petition for post-conviction review on May 31, 2012. Petitioner alleges generally ineffective assistance of counsel. She also alleges in her petition that her plea was not knowing or voluntary; however, during her PCR hearing she testified that she had "a good understanding of what I was doing and I needed to get out of jail to get help", and she testified that "Yes", her plea was made voluntarily. When asked why she filed her petition she testified, "basically because he did not do his job and threatened me." On the issue of threatening, she testified that her attorney told her that if she sought another attorney, she would not get another attorney.
The petitioner specifically alleges in her motion ineffective assistance of plea counsel in that (1) he failed to do adequate pretrial investigation, (2) failed to keep her adequately apprised of developments, (3) failed to consult with her regarding her defense, (4) failed to provide her with accurate information regarding her case, (5) failed to advise her of possible future consequences to pleading guilty, (6) pressured her into pleading guilty, (7) failed to consider her actual innocence, and (8) failed to comprehend how her medical condition affected her ability to understand the charges against her. Finally, there is also the allegation that her attorney threatened her. At the PCR hearing, evidence was provided on just a few of these grounds.
EVIDENCE AT PCR HEARING
At the PCR hearing, the insurance adjuster who inspected her car a couple of months after the collision testified that there was no evidence at all from Koromanian's car that it caused or was involved in an accident resulting in $5, 000 in damages to another vehicle. The accident occurred on December 5, 2011 and the adjuster did not inspect her vehicle until February 6, 2012, more than two months after the collision and two weeks after her plea on January 24, 2012. The adjuster did not know whether her vehicle had been repaired in the intervening time. He did not recall whether he inspected the other vehicle in the accident.
Koromanian testified that she told her plea attorney that there was no collision and that he failed to investigate this. Her plea counsel testified that he did not remember her raising or even discussing with him whether a collision had occurred; "she never brought this issue up to me, and I did not follow it up as a potential defense because she did not bring this issue up." According to her plea counsel, her primary concern was she wanted to get out of jail and a sentence that proposed time served met her objective.
Koromanian testified that she just needed to get out of jail to find some one else instead of her plea counsel. She testified she was unhappy with him because he threatened her and he laughed at her when she said she never rammed another vehicle, and told her, "I'll be the judge of that." She also testified that plea counsel never discussed her defense with her but she knew that no collision gave her a defense to reckless conduct. In response to all of these claims, the court observes that her plea attorney in this case helped her with her Oxford case, and when she applied for court-appointed counsel in this case on December 7, 2011, she asked that the court appoint her plea counsel to represent her. So in December 2011, she was not unhappy with the plea counsel she requested.
Koromanian also testified that she wrote the court asking for another attorney but she never got a response. The court file does not contain any letter from Koromanian asking the court to appoint another attorney for her. Rather, the court file reveals one lengthy, handwritten letter, dated January 9, 2012, from Koromanian in which she spoke about bail and how her pending Oxford case interfered with her release on the Cumberland bail in this case ($500 and Maine Pretrial Contract). She reported that her Oxford attorney, who is the same attorney that she now complains about in this petition, addressed the Oxford case, and the petitioner was now asking the Cumberland Court to reduce her bail to PR so she could be released to deal with her many medical and mental health issues. Petitioner discussed at length and sent documents supplementing her discussion in the letter of her medical and mental health issues. With regard to her lawyer, she says she has not seen her lawyer in three weeks, and she closes her letter by stating, "As for my attorney, I will cross that bridge when I get to it." However, she does not ask the court to take any action with respect to court-appointed counsel.
Plea counsel testified that he represented Koromanian in SOPSC CR-11-253, charges of terrorizing and forgery. She pled guilty to those charges on December 16, 2011 and received nine months, all suspended. Plea counsel thought that was the end of their attorney-client relationship. Then he received notice that he was appointed to represent Koromanian in this case. Plea counsel met with her, went over the discovery, and talked about defenses. Plea counsel states, she never said the collision did not occur. Her primary concern was to get out of jail. He had hoped to avoid a felony conviction and a multi-year loss of license, but the facts were heavily weighted against her. He does not recall a conversation about getting another attorney or "go look at my vehicle." In the end she pled to Counts 1 and 3, received a time served sentence and the remaining counts were dismissed.
The Plea Transcript discloses that the plea judge at the Rule 11 plea on January 24, 2012 engaged the defendant in a lengthy and thorough Rule 11 colloquy as part of the felony plea. Consistent with M.R.Crim.P. 11, the court inquired whether she "had enough time to go over the indictment, which has the seven charges in it, with [her attorney]?" The petitioner responded, "yes." (Tr. 3.) When asked by the judge whether she needed "any other additional time to speak with [her attorney] about the charges or about the information in the case", she responded, "no." (Tr. 3.) The plea judge then reviewed the elements of the charges to which she pled guilty, including that "the State would have to further show that you did that with the use of a dangerous weapon. And in this case it was a motor vehicle. Do you understand this?" (T. 5.) The petitioner responded, "yes." (Tr. 5.) After listening to the plea judge explain all the jury trial rights she was giving up, she responded in the affirmative when the court asked, "are your pleas to these two charges made this morning voluntarily and of your own free will and choice?" (Tr. 9.) Koromanian said no one had forced her or threatened her in any way to get her to plead guilty to these two charges? (Tr. 9.)
The prosecuting attorney recited at the plea hearing that if the case had gone to trial the evidence would have included the testimony of the off-duty fireman who called the Sheriffs Department to report that a drunk driver had just rammed his car. He said that a drunk driver drove into his car, causing an estimated $5, 000 damage and drove off. There also would have been the testimony of the officer who, unaware that her car had been involved in the ramming of the off-duty fireman's vehicle, stopped Koromanian for speeding and observed "indicia of impairment." (Tr. 10.) The testimony would have also included that Koromanian told the officer that she was heading to Portland but she was going in the wrong direction, she admitted to one glass ...