ORDER ON POST-CONVICTION REVIEW
Joyce A. Wheeler, Justice
Steven Morrill (" Morrill") was charged on February 2, 2011 in a three-count complaint in Docket No. CUMCD-CR-11-1069 with Attempted Kidnapping (Class B), Criminal Restraint (Class C) and Assault (Class C). On April 7, 2011, he was charged in a three-count indictment with the same three counts that appeared in the complaint. These charges stemmed from incidents between January 16 and February 16, 2011 in Westbrook while a child was waiting for the school bus. The interactions were witnessed by the child's mother and a neighbor, Elaina Young. Morrill acknowledged his interaction with the child but denied any wrongdoing. Eventually on October 24, 2011, in CUMCD-CR-11-1069 Morrill pled nolo contendere to count two of the indictment of Class C Criminal Restraint, and in CUMCD-CR-11-6871 he pled nolo to a new information charging Class C Terrorizing involving threats made against the victim and two witnesses in CUMCD-CR-11-11069.
The court (Moskowitz, J.) sentenced him in CUMCD-CR-11-1069 to a five-year period of incarceration with the Department of Corrections with all but eight months suspended and a two-year probationary term. In CUMCD-CR-11-6871, the court sentenced him to a five-year period of incarceration all fully suspended and a two-year probationary term, to be served concurrently with CUMCD-CR-11-1069. The state dismissed the remainder of the indictment in CUMCD-CR-11-1069 as part of the plea agreement. After being credited for time served, Morrill was released the same day as the plea. Morrill did not appeal his convictions or the sentences. Morrill filed a petition for post-conviction review on October 16, 2012.
The petitioner filed the motion now before the court alleging ineffective assistance of plea counsel on several grounds. Morrill states he had an agreement to plead nolo to terrorizing only and the other 3 charges were to be dismissed, but that Criminal Restraint was added at the last minute as part of his plea. Morrill also thought that this charge was initially charged as an attempted crime and somehow the attempted language was dropped. This claim has no merit because the only attempt charge was Attempted Kidnapping and that charge was dismissed as part of the plea agreement.
Morrill also alleged that the key witness in CUMCD-CR-11-1069, Elaina Young, recanted her statement to the police. This claim also has no merit as Young did not change her testimony and was ready, willing and able to testify. (Tr. 14-15.)
Morrill also claims his plea counsel did not discuss the existing charges with him before the plea. This will be discussed below.
Morrill amended his petition to add that his plea was not voluntary because (1) he suffers from mental illness, including a serious anxiety disorder, (2) at the time of his plea he had been incarcerated for 243 days while awaiting a trial, and (3) he was pressured by his plea counsel to enter a plea that he did not want to make. He also points out that he was medicated while being held at the jail. This claim will be discussed below.
At the hearing on his petition on November 4, 2013, Petitioner presented the transcript of the plea proceedings, the testimony of a friend Robert Ledoux, and his own testimony. The State presented the testimony of plea counsel.
EVIDENCE AT PCR HEARING
At the PCR hearing, petitioner testified that plea counsel did not discuss the charges, the alternatives and the consequences. According to Morrill, plea counsel only discussed the nolo plea to terrorizing, but when he got into court, criminal restraint was added. When he tried to talk to plea counsel about this charge, plea counsel responded, " You want to get out of jail, don't you." Petitioner had been in jail 248 days at the time of the plea and, according to Morrill, he had " about one-half a minute to make up his mind" about accepting the plea deal. He admits that he learned from his plea counsel approximately two weeks before his plea that he was being charged with terrorizing and they discussed what would happen to the other charges if he pled to terrorizing. He claims did not learn until the day of the plea that the other charges would not be dismissed.
The case was on the trial list to pick a jury on the day of the plea. For several days before the day of the plea, Morrill refused to speak with plea counsel. This was part of a pattern. Counsel was turned away three times. Eventually, petitioner agreed to speak with plea counsel. Morrill was angry and confrontational. He had a good grasp of the issues but was very difficult to communicate with. He was not able to focus on what plea counsel was trying to get him to focus on. Plea counsel admits that at some point earlier in representing Morrill he may have said he would try to get all three of the other charges dismissed, but the prosecutor would not consider dismissal of the charges in the indictment. The prosecutor wanted 5 years even before the terrorizing charge arose. Morrill wanted to talk about the discovery materials and his belief that someone had altered the discovery. Plea counsel read the discovery that Morrill complained about; it was material produced pursuant to the Clifford order and it contained nothing that would benefit Morrill's case. Nothing in the discovery had been altered.
According to plea counsel, Morrill always claimed he was 100% innocent, but when one assessed the pragmatic aspects of the case, he had already been in jail for eight months and Morrill wanted out of jail. There was a big down side if Morrill lost at trial. Morrill was making his decision based on getting out of jail. Plea counsel spoke with Morrill for about one-half hour on the day of ...