November 5, 2015
briefs: Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for
appellant Gerald B. Kennedy.
A. Rushlau, District Attorney, and Patricia A. Mador, Asst.
Dist. Atty., Office of the District Attorney, Bath, for
appellee State of Maine.
argument: Jamesa J. Drake, Esq., for appellant Gerald B.
A. Mador, Asst. Dist. Atty., for appellee State of Maine.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ. Majority: SAUFLEY, C.J., and ALEXANDER, MEAD,
GORMAN, JABAR, and HUMPHREY, JJ. Dissent: HJELM, J.
[¶1] In this appeal, addressing standards
for a collateral attack upon a prior misdemeanor conviction
entered after an apparently uncounseled plea, we are asked to
declare the prior conviction void because the defendant,
although expressing an understanding of his right to
representation and an intention to retain counsel following
his arraignment, later entered a guilty plea without the
presence of counsel.
[¶2] The defendant, seeking to collaterally
attack a prior conviction, bears the burden to prove that he
did not competently and intelligently waive his right to the
assistance of counsel. In this case, the defendant has not
met his burden of proof, and we affirm the judgment.
[¶3] Gerald B. Kennedy appeals from the
entry of a judgment of conviction in the Unified Criminal
Docket (Sagadahoc County, Horton, J. ) following
Kennedy's conditional guilty plea, authorized by
U.C.D.R.P.-Cumberland County 11(a)(2), Me. R. U. Crim. P.
Rule 11(a)(2), to a charge of operating under the
influence, elevated to a Class C offense by two prior
convictions for operating under the influence, 29-A M.R.S.
§ 2411(1-A)(B)(2) (2015). Kennedy argues that his
2013 OUI conviction, that was one of the two convictions that
enhanced his 2014 charge to a Class C felony, was obtained in
violation of his Sixth Amendment right to counsel and that
the trial court erred in denying his motion to strike that
conviction from the indictment.
[¶4] The available record indicates the
following facts that are not in dispute. In 2008, Kennedy
pleaded guilty to one count of OUI with one prior conviction
for OUI. At that hearing, he consulted with a
lawyer of the day. Kennedy does not challenge the 2008
[¶5] In 2013, Kennedy was again charged with
OUI with one prior conviction for OUI. The transcript of
Kennedy's arraignment on July 2, 2013, indicates that he
was shown a video explaining his rights, including his right
to counsel, and that during the in-person discussion with the
judge handling his arraignment, he indicated that he
understood those rights, specifically stating that he knew he
had the right to a court-appointed attorney. The court (
J.D. Kennedy, J. ) advised Kennedy that his charge
carried a mandatory minimum sentence of forty-eight hours in
jail and told Kennedy he might be able to serve that through
the alternative sentencing program.
[¶6] The court's statement as to the
minimum sentence was incorrect. The mandatory minimum
sentence of incarceration for a second offense OUI is seven
days in jail. 29-A M.R.S. § 2411(5)(B)(2) (2015). When
Kennedy asked about sentencing alternatives, the court
advised Kennedy to speak with the lawyer of the day. Kennedy
responded that he planned to hire his own attorney--"
I'm going to hire me a lawyer." The court entered a
plea of not guilty on Kennedy's behalf and scheduled a
dispositional conference for September 5, 2013.
[¶7] Kennedy appeared at the dispositional
conference convened pursuant to the rules of the Unified
Criminal Docket (Cumberland County, Brodrick, J. ).
The record is silent as to whether he received the assistance
of counsel before or during the dispositional conference.
Following the conference, Kennedy appeared in open court,
apparently without counsel, and in a brief, on the record
hearing changed his plea to guilty. Reflecting what
apparently had been agreed to at the dispositional
conference, the court sentenced Kennedy to ten days in
jail, a three-year license suspension, and a
$700 fine. By agreement, Kennedy's reporting to jail was
stayed almost three weeks, until September 23. Kennedy's
right to counsel or waiver of the right to counsel was not
discussed on the record during the 2013 plea hearing.
[¶8] Seven months later, Kennedy was again
arrested for OUI and, on June 10, 2014, he was indicted in
the Superior Court (Sagadahoc County) for third offense OUI
(Class C). Kennedy, through court-appointed counsel, moved to
strike the 2013 OUI conviction, arguing that it should not be
considered for the purposes of enhancing the 2014 charge
because the 2013 conviction was obtained in violation of his
Sixth Amendment right to counsel. See U.S. Const.
amend. VI; State v. Johnson, 2012 ME 39, ¶ 23, 38
[¶9] A hearing on Kennedy's motion to
strike was held on August 20, 2014 ( Horton, J. ).
The evidence offered at the hearing consisted of only the
docket entries regarding the 2013 conviction and audio
recordings and/or transcripts of the 2013 arraignment and
plea hearings. Neither Kennedy nor any other witness
[¶10] Kennedy argued that during the 2013
plea proceeding, the court was constitutionally required to
take affirmative steps to ensure that Kennedy had knowingly
and intelligently waived his right to counsel and that his
waiver of the right to counsel appeared on the record.
However, Kennedy acknowledged that he was aware of his right
to counsel and, in his attempt to collaterally attack the
2013 conviction, offered no evidence to show whether he did
or did not speak to a lawyer before he appeared for the plea
[¶11] The court denied the motion to strike,
concluding that Kennedy bore the burden to prove that he had
not knowingly, intelligently, and voluntarily waived his
right to counsel and that he had not met that burden. The
court based its decision on the following facts: (1) Kennedy
pleaded guilty to an identical charge in 2008 and had
assistance of counsel at that proceeding; (2) Kennedy
confirmed at his 2013 arraignment that he understood his
rights, including the right to counsel; (3) the 2013
arraignment judge advised Kennedy of his right to counsel;
(4) the arraignment judge encouraged ...