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Sterling v. State

Superior Court of Maine, Cumberland

August 23, 2016

STATE OF MAINE, Respondent.

         Unified Criminal


          Thomas D. Warren, Justice.

         Before the court is petitioner's motion to file a second amended petition including claims of ineffective assistance against bis appellate counsel. This motion is opposed by the State and has required the court to review the trial transcript and the appellate briefs.

         1. The history of this post conviction proceeding has been a source of considerable frustration and delay. It was originally filed in March 2014. After counsel was appointed and after a short extension, an amended petition was filed on July 3, 2014. That petition contended (1) that a plea offer had not been communicated to Sterling, (2) that trial counsel had assured Sterling he would never be convicted, (3) that trial counsel had failed to raise a Brady argument with respect to certain discovery violations, (4) that counsel had failed to obtain a presentence investigation for purposes of sentencing, and (5) that the State had also violated Brady by withholding information relating to the victim's criminal record. The amended petition also vaguely alleged that trial counsel should have called additional witnesses and offered additional evidence at trial.

         2, There was a significant delay in scheduling a conference with counsel, but after various attempts by the clerk's office to schedule a conference, one was finally held on September 10, 2015. After tbat conference the court issued an order dated September 11, 2015, requiring Sterling's counsel to specify the identity of the witnesses Sterling contended should have been called at trial, the nature of the testimony Sterling contended those witnesses would have given if called, and the nature of any other evidence that Sterling contended should have been offered by trial counsel. That order also ordered Sterling to flesh out other aspects of his amended petition, 3. The deadline for submission of the offer of proof was November 10, 2015. However, counsel for petitioner sought an extension to the end of December and then Sterling, acting pro se, sought and received a further extension to the end of January 2016. After a short additional extension, the offer of proof was filed on February 2, 2016.

         4. The February 2016 offer of proof was lengthy but confusing, and as to some issues the court was unable to discern what evidence would be offered beyond the evidence already in the trial record.[1] A second conference with counsel was held on April 7, 2016, at which time counsel for petitioner stated that he was considering whether to seek to amend the petition a second time to assert claims of ineffectiveness by appellate counsel. The court issued an order dated April 8, 2016 noting that the State would likely oppose a further amendment and giving Sterling a deadline of May 6, 2016 in which to file any motion to file a second amended petition. That order also directed Sterling to remedy defects in his offer of proof.

         5. Counsel for petitioner sought and obtained a one week extension of the May 6 deadline. However, Sterling's motion to file a second amended petition and his amended offer of proof were not actually filed until June 1, 2016.

         6. The State responded that at this late date Sterling should not be given further opportunities to raise additional grounds and that the grounds that Sterling is seeking to add are demonstrably without merit.

         7. Rather than solely considering the untimeliness of Sterling's motion for leave to file a second amended petition, the court has reviewed the underlying file, the trial transcript, and the appellate briefs.

         8. Sterling contends that his trial counsel, Derrick Banda, did not adequately object to certain alleged prosecutorial misconduct during cross-examination and summation and that his appellate counsel, William Maselli, did not adequately raise those issues on appeal. The trial transcript, however, offers no support for Sterling's contention that the prosecutor stood up and "interrupted the cross-examination" of the victim to tell the jury that the victim was traumatized. Proposed Second Amended Petition ¶ 4. In addition, although petitioner now contends that the prosecutor stated her personal opinions as to the credibility of the victim, a review of the closing argument demonstrates that the prosecutor's arguments were expressly based on the trial evidence.[2] The amended petition also contends that there was no basis for the prosecutor's statement that the victim was afraid for her life. However, the victim in fact testified, "I thought I was going to die." Trial Tr. 73.

         9. The proposed amended petition also contends that appellate counsel did not adequately brief the State's alleged Brady violation. Proposed Second Amended Petition ¶ 5. That issue, however, was expressly raised at pages 12-21 of Maselli's appellate brief and was addressed by the Law Court in its Memorandum Decision affirming the conviction. State v. Sterling, Docket No. Cum-12-497, Decision No, Mem. 13-137 (December 24, 2014).

         10. Finally, tiie proposed amended petition attempts to resurrect the argument that the jury instructions were flawed based on the definitions of "bodily injury" and "serious bodily injury." Proposed Second Amended Petition ¶ 7. That argument was raised in Masellrs appellate brief at pages 10-12 and was expressly rejected by the Law Court in its memorandum decision.

         11. The proposed second amended petition was untimely, The motion to amend was not filed until 23 months after the amended petition and, if granted, would inevitably cause further delay. Moreover, the court cannot find that the proposed amendments raise any legitimate grounds for granting post-conviction relief. Accordingly, the court does not find good cause for the proposed amendment, U.C.D. Rule 70(c)(3), and the motion to amend is denied.[3]

         12. A separate order shall be issued with respect to petitioner's Amended Offer of ...

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