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State v. Mohamed

Superior Court of Maine, Kennebec

July 3, 2017

STATE OF MAINE
v.
FAYSAL A. MOHAMED, Defendant

          Attorney: ROBERT LEVINE

          State's Attorney: MAEGHAN MALONEY

          ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL

          Robert E. Mullen, Deputy Chief Justice Maine Superior Court.

         Oral argument was conducted before the undersigned on June 28, 2017 with respect to the Defendant's Motion For New Trial filed June 1, 2017. After listening to the arguments of counsel as well as reviewing pertinent case law and Rules 1[1] and 33[2] of the Unified Rules of Criminal Procedure, the Court makes the following Findings of Fact and Conclusions of Law upon which the Order set forth below is based:

1. Defendant plead guilty on June 4, 2015 to one count of Unlawful Possession of a Scheduled Drug, Class B (crack cocaine or cocaine base) and to one count of Falsifying Physical Evidence, Class D A count of Unlawful Trafficking of Scheduled Drugs, Class B and a count of Violation of Conditions of Release, Class E were dismissed as part of a plea negotiation Defendant received a sentence of five years to the Department of Corrections, all but 364 days suspended, with three years probation on the felony, with a sentence of six months, concur rent to the felony, on the misdemeanor. Defendant is not a U.S. citizen, but instead is considered a "Lawful Permanent Resident of the United States...", see Defendant's Exhibit 1 for more details.
2. On December 15, 2016 the Defendant admitted to violating his probation and received a sentence of 20 days with his probation to continue. The jail sentence was concurrent with two other matters, ALFSC-10-2004 and CUMB-CR-16-4830.
3. On or about August 26, 2016 deportation proceedings were initiated by the U.S. Department of Homeland Security against the Defendant. The charging instrument states that because Defendant was convicted of the aforementioned felony in this matter as well as subsequently convicted of a charge of Unlawful Trafficking in Scheduled Drugs on June 26, 2015 in the York County Superior Court "you are subject to removal from the United States..." citing sections of the Immigration and Nationality Act, see Defendant's Exhibit 1 for more details.
4. Counsel for Defendant contends that Defendant was taken into immigration custody and ordered deported as a result of the criminal convictions set out above. Counsel contends that Defendant received ineffective assistance of counsel in this matter because (a) he was not provided with a translator; (b) he was not adequately informed of the immigration consequences of his plea; and (c) he was given incorrect advice that he would not be deported to the Sudan, see Defendant's Motion For New Trial at ¶24.
5. As a result of the above, counsel argues that Defendant is entitled to a new trial pursuant to Rules 1 and 33 of the Rules of Unified Criminal Procedure. Defendant has apparently not sought relief pursuant to the post-conviction review statute. The undersigned addresses each contention of the Defendant below:

         I. Defendant should have been provided with a translator:

6. Counsel contends that because Defendant was provided with a translator in subsequent proceedings that there should have been a translator present at Defendant's Rule 11 proceeding on June 4, 2015. The Court disagrees. There is no indication in the Court's file that Defendant, who has lived in this country for nearly 18 years, ever indicated problems with his understanding of the English language prior to or during the Rule 11 hearing. No request for a translator was ever made to the Court. The Defendant did not exhibit any problems understanding what was occurring during his Rule 11 hearing before the undersigned, nor is there any indication that he had any problems understanding what occurred at his subsequent probation violation hearing over a year later. Finally, the State Forensic Service performed an evaluation of the Defendant on March 16, 2015, or less than three months prior to the Rule 11 hearing. The examiner spent over four hours with the Defendant. The examiner took an extensive history from the Defendant, indicating in their resulting report that the Defendant was "forthcoming and answered all questions asked of him... (H)is speech was fluent and easily understood... (H)is thought process was clear, coherent, and organized...", see Evaluation of the Defendant by Dr. Sarah Miller, Ph.D. dated March 16, 2015 for more details. There is nothing in the report that would support a contention that Defendant was in need of a translator for his Rule 11 hearing, and the Court does not find so now.
7. Moreover, a review of the Rule 11 transcript of the plea involved in this matter provides no support for any contention that Defendant did not understand the process he was going through or did not understand the questions asked of him. Finally, a review of the Rule 11 hearing transcript of the Defendant's subsequent plea on June 26, 2015 raises serious questions in the mind of the undersigned as to why a translator was needed in that case as well.

         II. Defendant was not adequately informed of the immigration consequences of his plea:

         8. Counsel for Defendant contends that Defendant was never advised that his plea of guilty to drug possession made ...


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