Morse v. State of Maine

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION DOCKET NO. CR-00-139 WM Ke iim $/| 0/200} MATTHEW MORSE, Petitioner Vv. ORDER ON PETITION FOR POST-CONVICTION REVIEW STATE OF MAINE, Respondent Hearing on grounds one and two of the petition for post-conviction review was held on 8/7/01. Ground three of the petition was withdrawn by the petitioner. Ground four of the petition was dismissed after argument. In grounds one and two of the petition, the petitioner alleges a denial of due process and obvious error at sentencing. See Stewart v. State, 259 A.2d 664, 666 (Me. 1969) (The petitioner has the burden of proof by the fair preponderance of the evidence to show that the sentence procedure at trial was so impregnated with fundamental unfairness that his current sentence, even though within permissible limits, would be in violation of due process.") The petitioner was represented in the underlying case by attorney Walter McKee. The petitioner pleaded guilty to two counts of Gross Sexual Assault and two counts of Unlawful Sexual Contact. There was a cap plea agreement. The State recommended the following: on one count of Gross Sexual Assault, 20 years all but [1] 6 years suspended and a period of probation; on the second count of Gross Sexual Assault, 15 years, all suspended, and six years of probation, consecutive to the first - sentence The petitioner was entitled to argue for less and argued for a significantly lesser sentence of 4 years with all but 60 days suspended and a period of probation. Attorney McKee made a lengthy argument with regard to sentence. He believed that he had sufficient time at hearing to make his argument. He felt no pressure during the sentencing hearing. Although Attorney McKee thought that there were many mitigating factors in this case, he testified that, unfortunately, the presiding justice was not swayed. The justice imposed a sentence of eight years with all but four years suspended, and six years of probation on the Gross Sexual Assault counts and two years with all but fifteen months suspended and four years of probation on the Unlawful Sexual Contact counts. All sentences were to be served concurrently. See Sentencing Transcript at 38-39. The petitioner had never been through a sentencing hearing before. He thought that his numerous character witnesses would suffice to show that he was a good person. He and his attorney discussed having the witnesses come to the hearing but determined that the witness statements would be sufficient. The petitioner thought the statements would be read out loud during the hearing. He agreed that he was not sure how the proceedings would take place. The petitioner thought the sentencing hearing was over quickly and that the judge did not give him the time in court that he should have had. The petitioner based this conclusion on the following statement by the justice at the close of the hearing: I am somewhat anxious to leave the courtroom because I am running over by ten minutes Justice Alexander’s ceremony and swearing in of new counsel, so what I’m going to do is ask Mr. Morse to remain behind. . . Mr. Morse, you need to remain behind because you need to endorse some paperwork I'll be signing shortly. Id. at 42. The justice signed the judgment and commitment papers in chambers. Essentially, the petitioner disagrees with the sentence imposed, especially compared to other defendants’ sentences he has heard about. Attorney McKee agreed that it was not uncommon for a judge to sign the judgment and commitment papers in chambers if something else was going on in the courtroom. Attorney McKee testified that in the abstract, the presiding justice’s comment regarding "ten minutes" was unusual but in the context of this case, it was not unusual. The transcript of the sentencing hearing reflects that the presiding justice stated on the record that he had read the sentencing memoranda and the appendix submitted by the defendant. See id. at 2. The justice stated that he spent a good part of the previous afternoon reading the material and stated that it was fresh in his mind. See id. In fact, the justice discussed aspects of the defendant's sentencing memorandum. See id. at 4. He also read the State's material. See id. at 5; see also id. at 12, 17, 20. The presiding justice gave the defendant an opportunity to address the court. See id. at 30. The defendant had written a statement but was unable to read it. After giving the statement to the Assistant District Attorney to read, the justice read the defendant's statement and then asked the defendant if-there was anything else he | would like to say; the defendant replied no. See id. at 30-31. The justice also asked Attorney McKee if he had anything to add and Mr. McKee replied that he did not. See id at 31. In imposing the sentence, the justice indicated his reliance on the sentencing memoranda as well as the presentation at the sentencing hearing. See id. at 32. The justice articulated a Hewey analysis and the conditions of probation, informed Mr. Morse of his right to appeal the sentence, and instructed the defendant regarding his duty to register as a sex offender. See id. at 32-41. The justice then discussed with the defendant why the court did not impose the sentence requested by the defendant's attorney and offered some words of encouragement to the defendant regarding the experience in the Department of Corrections. See id. at 41-42. The justice then discussed his leaving the bench, as quoted above. The petitioner has failed to prove that the sentencing proceeding was fundamentally unfair. See Stewart, 259 A.2d at 666 . The presiding justice had read everything given to him prior to the sentencing hearing. Both attorneys and the defendant were heard at the hearing. The justice inquired several times whether anyone had anything further to say. There is nothing on this record to indicate that the sentencing proceeding was hurried in any way. The fact that the judge chose to sign the judgment and commitment documents in chambers to allow another judge to use the courtroom does not, on this record, suggest any unfairness. See id.; see also Green Vv. State, 247 A.2d 117, 120 (Me. 1968) (due process requirements of sentencing procedure). The entry is The Petition for Post-ConvictionAs DENIED. Dated: August 10, 2001 Mhudke. Nancy Mills Justice, Superior Cotft Morse v. State CR-00-139 MATTHEW MORSE vs STATE OF MAINE PL. DOB: 11/20/1971 PL. ATTY: JEFFREY TOWNE APPOINTED 05/18/2000 Charge (s) Docket Events: SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CR-2000-00139 05/12/2000 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 05/12/2000 05/17/2000 05/17/2000 05/17/2000 06/27/2000 06/27/2000 07/05/2000 07/05/2000 07/14/2000 07/14/2000 08/14/2000 09/27/2000 10/13/2000 10/16/2000 DOCKET RECORD State's Attorney: DAVID CROOK CR-99-028 PETITION, MOTION FOR APPOINTMENT OF COUNSEL AND FINANCIAL CERTIFICATE, FILED. CASE FORWARDED TO JUSTICE STUDSTRUP FOR REVIEW. POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO DOCKET ON 05/15/2000 POST CONVIC. REVIEW - ORDER TO RESPOND TO PETITION SENT ON 05/17/2000 COPY OF POST CONVICTION ORDER ISSUED TO DA'S OFFICE. POST CONVIC. REVIEW - REVIEW REVIEW BY JUSTICE ON 05/15/2000 REVIEWED BY J. STUDSTRUP AND ASSIGNED TO REGULAR DOCKET. POST CONVIC. REVIEW - RESPONSE TO PETITION FILED ON 06/26/2000 PETITIONER'S NOTICE OF AMENDED PETITION. MOTION - MOTION FOR EXTENSION OF TIME FILED BY STATE ON 06/27/2000 MOTION - MOTION FOR EXTENSION OF TIME GRANTED ON 06/30/2000 COPY TO PARTIES/COUNSEL UNTIL JULY 28, 2000, WHICH IS 20 DAYS AFTER VACATION. ATTORNEY - APPOINTED ORDERED ON 05/18/2000 Attorney: JEFFREY TOWNE ATTORNEY FOR PARTY 001 PLAINTIFF POST CONVIC. REVIEW - RESPONSE TO PETITION FILED ON 07/13/2000 RESPONDENT'S ANSWER TO THE PETITION FOR POST CONVICTION REVIEW DATED MOTION - MOTION TO DISMISS FILED BY STATE ON 07/13/2000 THE PETITION FOR POST-CONVICTION REVIEW OTHER FILING - TRANSCRIPT ORDER FILED ON 07/10/2000 COPY TO COURT REPORTER OTHER FILING - TRANSCRIPT FILED ON 09/27/2000 TRANSCRIPT OF RULE 11 HEARING FROM 2/10/99. POST CONVIC. REVIEW - NOTICE TO REQ/DISPENSE CONF. SENT ON 10/13/2000 TIME EXTENDED STATE'S ATTORNEY RETURNS FROM MAY 10, POST CONVIC. REVIEW - PCR CONFERENCE REQUEST FILED BY STATE ON 10/16/2000 Page [1] of [2] Printed on: 2000. 08/10/2001 10/16/2000 10/16/2000 10/17/2000 02/21/2001 92/21/2001 03/19/2001 03/19/2001 04/12/2001 04/24/2001 08/01/2001 08/01/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 STATE OF MAINE AUGSC-CR-2000-00139 DOCKET RECORD P. RUCHA, ADA OTHER FILING - OTHER DOCUMENT FILED ON 10/16/2000 PETITIONER'S HEARING MEMORANDUM WITH REQUEST FOR JUDICIAL NOTICE OF COURT RECORDS. TOWNE, ESQ. MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 10/16/2000 FOR DISCOVERY. S/dJ. TOWNE, ESQ. PCR CONFERENCE REQUEST FILED BY PETITIONER ON 10/17/2000 PETITIONER'S MOTION POST CONVIC. REVIEW - POST CONVIC. REVIEW PCR CONFERENCE SCHEDULED FOR 03/14/2001 @ 8:30 POST CONVIC. REVIEW PCR CONFERENCE NOTICE SENT ON 02/21/2001 POST CONVIC. REVIEW PCR CONFERENCE HELD ON 03/14/2001 DONALD H MARDEN , JUSTICE Attorney: JEFFREY TOWNE DA: PAUL RUCHA OTHER FILING - ORDER FILED ON 03/15/2001 PRE-HEARING ORDER RESULTING FROM CONFERENCE FILED. COPIES TO COUNSEL. OTHER FILING - OTHER DOCUMENT FILED ON 04/12/2001 BRIEF - STATES BRIEF FILED ON 04/23/2001 PRE-TRIAL HEARING BRIEF. WRIT - HABEAS CORPUS TO TESTIFY ORDERED ON 07/26/2001 WRIT - HABEAS CORPUS TO TESTIFY ISSUED ON 07/27/2001 S KIRK STUDSTRUP , JUSTICE CERTIFIED COPY TO SHERIFF DEPT. POST CONVIC. REVIEW - EVIDENTIARY HEARING SCHEDULED FOR 08/07/2001 @ 8:30 POST CONVIC. REVIEW - EVIDENTIARY HEARING HELD ON 08/07/2001 @ 8:30 NANCY MILLS , JUSTICE Attorney: JEFFREY TOWNE DA: MICHAEL WELCH Defendant Present in Court POST CONVIC. REVIEW - PCR DETERMINATION UNDER ADVISEMENT ON 08/07/2001 NANCY MILLS , JUSTICE FINDING - DENIED ENTERED BY COURT ON 08/10/2001 NANCY MILLS , JUSTICE ORDER ISSUED. COPIES TO COUNSEL. Reporter: JANETTE COOK A TRUE COPY ATTEST: Clerk Page 2 Printed on: S/d. 08/10/2001