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State v. Kennedy

Superior Court of Maine, Sagadahoc

September 9, 2014



A. M. Horton, Justice.

Defendant Gerald Kennedy's Motion To Strike Prior Conviction came before the court for a non-testimonial hearing August 20, 2014.

In this case, the Defendant is charged with three criminal offenses, including a Class C Operating Under the Influence (OUI) charge, 29-A M.R.S. § 241 l(l-A)(B)(2), enhanced to a felony by virtue of two alleged prior OUI convictions-a September 2013 conviction in the Cumberland County Unified Criminal Docket case assigned No. CUMCD-CR-15-4639, and the other a 2007 conviction in the West Bath District Court, Docket No. WESDC-CR-07-1964. Defendant's motion seeks to strike from the indictment the 2013 conviction on the ground that it was the result of an uncounseled guilty plea obtained in violation of the Defendant's Sixth Amendment right to counsel. Defendant's motion does not seek to strike the 2007 conviction.

At the August 20, 2014 hearing, both parties offered exhibits that were admitted into evidence, consisting audio recordings of Defendant's arraignment (State's Ex. l) and guilty plea (Defendant's Ex. 1) in the CUMCD-CR-13-4639 case. In addition, the State requested, and the court agreed, that the court would take judicial notice of its own docket and procedures as follows:

• in the WESDC-CR-07-1964 case, Defendant was represented by counsel when he pleaded guilty to the same type of OUI charge involved in the CUMCD-CR-13-4639 conviction. A copy of the plea colloquy in that case is in the court's file as a court exhibit.
• in the CUMCD-CR-1S-46S9 case, the court's standard arraignment video recording was presented to Defendant and others on the date of Defendant's arraignment. A copy of the arraignment video is in the court file as a court exhibit. Based on the entire record, the Defendant's Motion To Strike Prior Conviction is denied.


In the case at issue, CUMCD-CR-13-4639, Defendant Gerald Kennedy appeared at the West Bath District Court for arraignment on the OUI charge and other charges. As of the date of Defendant's arraignment in CUMCD-CR-13-4.639, the West Bath District Court's practice was to present a video recording to all persons appearing for arraignment. The video recording includes a comprehensive explanation by Justice Robert Murray of the rights of an accused, including the right to counsel at all stages of a case. The video also includes an explanation of the maximum sentences on the classes of criminal offense, including Class D offenses such as the misdemeanor OUI charge on which Defendant was later convicted.

The court's practice also was (and is) to arrange for a "lawyer of the day" to attend arraignment sessions for the purpose of advising unrepresented defendants about their rights and their options in handling their cases, and also to facilitate resolution of cases that can be resolved by agreement at arraignment.

According to the recording of Defendant's arraignment admitted as State's Exhibit 1, the presiding judge called the Defendant's case and advised him of the specifics of the OUI charge and operating beyond license restriction charges, and the minimum mandatory sentence for the OUI charge. The Defendant indicated he understood the charge. The judge then asked the Defendant if he had "any questions about the rights that were explained earlier" and the Defendant said he did not. The judge advised the Defendant that he was eligible to apply for a court-appointed attorney, and requested the Defendant to speak with the lawyer of the day. The Defendant declined, saying, "I am going to hire [¥} lawyer." The judge endorsed the Defendant's plan, and that concluded the arraignment.

After the case was transferred to the Cumberland County court pursuant to the Unified Criminal Docket procedure, Defendant entered an uncounseled guilty plea to the OUI charge.

According to the recording of the plea admitted as Defendant's Exhibit 1, the colloquy at the time of the plea was limited to the presiding judge explaining the charge and asking how the Defendant wished to plead. There was no reminder of the Defendant's right to counsel, including court-appointed counsel, and no inquiry about whether the Defendant wished to proceed without counsel or waive his right to counsel. No written waiver of the right to counsel was signed. The sentence imposed was for 10 days in jail, a $700 fine and a 3-year license suspension, with a stay of the jail sentence and a fine payment order.


The sole issue presented by Defendant's Motion To Strike Prior Conviction is whether Defendant's conviction in CUMCD-CR-13-4-639 was obtained in violation of his Sixth Amendment right to counsel or was the result of a valid waiver of the right. This is because "a defendant whose criminal charge or sentence is subject to enhancement because of a prior conviction may not, in the current prosecution, collaterally attack the prior conviction by seeking to strike the prior conviction based ...

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