The opinion
STATEOF MAINE = «> =r-7) & ii. <!) ~~ SUPERIOR COURT
KENNEBECG, ss yo. CRIMINAL ACTION
DOCKET NO. CR-97-163
STATE OF MAINE san = g 2 TA Beye Hf 90
Clerk of Courts
v. Kenneses COUNY — oRnerR ON PETITION
FOR POST-CONVICTION
JEFFREY EDWARDS, REVIEW
Defendant
On 12/28/00, hearing was held on grounds three-five of the Amended
Petition for Post-Conviction Review. In the petition, the petitioner argues that he
received ineffective assistance of counsel because petitioner’s trial counsel failed to
obtain a plea agreement similar to that of the co-defendants, failed to bring to the
court’s attention the sentences imposed on the co-defendants, and failed to provide
copies of discovery materials to the petitioner. At trial, the petitioner also argued
that counsel should have advised the court that the petitioner was pleading guilty
against counsel’s advice.
The petitioner was indicted on 10/21/97 and was not arrested on the
indictment until 10/31/98. He was arraigned on 11/6/98, entered a plea on 11/10/98,
was released on bail pending sentencing on 11/30/98, and after a stay of execution,
began his sentence on 12/7/98. The agreement reached with District Attorney Crook
on behalf of the petitioner provided for either a cap recommendation of 20/15/6
with the defendant arguing for less or an agreed recommendation of 15/7/6. The
plea agreement also provided that the plea would be entered on 11/6/98 and the
matter would be continued for sentencing to 11/30/98. If the defendant appeared
and pleaded, the State would not oppose a reduction of bail to $2500.00 cash. See
State’s Exhibit 3.
Co-defendant Michael Brown pleaded on 12/16/97 and received sentences of
6/2/6, 5/2/4, and 5/2/4 on, respectively, robbery, theft, and aggravated assault. Mr.
Brown cooperated with the authorities with regard to these charges and had a
minimal prior record. See Defendant’s Exhibit 2.
Co-defendant Steven McMann pleaded on 4/16/98 and received sentences of
10/3/6, 1 year, and 4 years on, respectively, robbery, theft, and aggravated assault.
See Defendant's Exhibit 4. Mr. McMann also cooperated with the authorities, had
no prior felony convictions, and had previously never served more than 30 days in
jail. See State’s Exhibit 4.
The District Attorney recommended a cap sentence for both co-defendants
Brown and McMann of 15/7/6 and their attorneys were permitted to argue for a
reduced sentence. Petitioner Edwards was not offered the cap agreement of 15/7/6.
That offer could not have been made to petitioner Edwards because at the time the
co-defendants pleaded and were sentenced, petitioner Edwards could not be found
by the authorities and had not yet been arraigned on the indictment. Cf. Defendant's
Exhibits 1 & 3.
Prior to these convictions, petitioner Edwards had several felony convictions
and he committed this robbery, theft, and aggravated assault within one year after
having been released from a three-year sentence to the Department of Corrections
for convictions for two class B burglaries, a class B theft, and a class D theft. See
State’s Exhibit 2.
Petitioner’s trial counsel met with the petitioner on two or three occasions
prior to the Rule 11 proceeding. Counsel brought the discovery to the jail each time
_and discussed it with the petitioner. It is not disputed that a copy of the written
discovery materials were not provided to the petitioner. It is trial counsel’s practice
to give discovery to clients who request it.
The petitioner testified that he agreed to plead to these three charges only
because his trial counsel told him that the agreed sentence of 15/7/6 was in the
petitioner’s best interest. This testimony is not credible. The court finds instead that
the petitioner’s primary concern throughout the proceedings in court was to be
released from jail so that he could be with his son. See, e.g., State’s Exhibit 1. As
noted above, the State agreed to a reduction of cash bail so that the petitioner would
be released from jail during the period of time between the plea and the sentencing.
The defendant then obtained, over the State’s objection, a one-week stay of
execution of the sentence. It was the petitioner’s intent from the beginning of these
cases to plead guilty and to do “whatever it took” to get out of jail to see his son. His
trial counsel advised the petitioner not to accept the State’s recommendation;
counsel believed that after trial or during an open plea, he could obtain a sentence of
less than 15/7/6 because counsel believed he could prove that petitioner Edwards
had not caused the injury to the victim and because of the sentences of the co-
defendants, even though they had significantly less serious records.
The petitioner has failed to prove on this record that there was any serious
incompetency, inefficiency, or inattention of his trial counsel. See Aldus v. State,
2000 ME 47, ¥ 12, 748 A.2d 463, 467. Further, this record makes clear that the
petitioner was determined to plead guilty to these offenses in order to secure release
from incarceration to see his son prior to the commencement of the sentence. See
Laferriere v. State, 1997 ME 169, {{ 7-8, 697 A.2d 1301, 1304-05.
The petitioner argues for the first time during the hearing that because
counsel should have advised the court during the Rule 11 proceeding that the plea
was against counsel’s advice and that the court erred in determining that the plea
was voluntary. The Rule 11 and sentencing transcripts were filed on 9/13/99. Any
argument regarding the Rule 11 proceeding should have been added to the petition
prior to the hearing. Although trial counsel advised his client not to accept the plea
agreement, counsel did not want to jeopardize the court’s acceptance of a plea
agreement, which his client clearly wanted to accept. The petitioner has not proved
that his plea was not the voluntary and knowing choice of a guilty person. See id.
9,697 A.2d at 1305; see also Rule 11 Transcript at 3-10, 12-15, 19-24.
The entry is
The Petition for Post-Conviction/sReview is DENIED.
Dated: January 6, 2001 Mk Ve
Naxcy Mills
Justice, Superior Coyrt
“
ANE - : SUPERIOR COURT
KENNEBEC, ss.
. W EDWARDS Docket No AUGSC-CR-1999-00163
“CORRECTIONAL CENTER PO BOX 250
4H WINDHAM ME 04062 DOCKET RECORD
PL. ATTY: DAVID CROOK “ ' State's Attorney: ROBERT SANDY
Filing Document: PETITION Major Case Type: POST CONVICTION REVIEW
Filing Date: 05/12/1999
Charge (s)
Docket Events;
05/17/1999
05/17/1999
05/24/1999
05/24/1999
06/18/1999
08/10/1999
08/12/1999
08/12/1999
08/31/1999
08/31/1999
09/13/1999
09/21/1999
FILING DOCUMENT - PETITION FILED ON 05/12/1999
MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 05/12/1999
WITH INDIGENCY AFFIDAVIT.
OTHER FILING - OTHER DOCUMENT FILED ON 05/24/1999
CERTIFICATE OF ACCOUNT BALANCE FILED BY DEFT.
JUDICIAL - ASSIGNMENT ASSIGNED TO DOCKET ON 05/24/1999
S KIRK STUDSTRUP , JUSTICE
POST-CONVICTION ASSIGNMENT ORDER FILED AND INCORPORATED HERRIN BY REFERENCE; CASE ASSIGNED
TO THE REGULAR CRIMINAL DOCKET; CONDITIONAL APPOINTMENT OF COUNSEL; TIME LIMITS
ESTABLISHED.
MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED oN 06/17/1999
ROBERT SANDY ESQ COURT APPOINTED. DEFENDANT IS FOUND TO BE INDIGENT. COPY TO COUNSEL.
MOTION ~ MOTION FOR ENLARGEMENT OF TIME FILED BY DEFENDANT ON 08/09/1999
PETITIONER'S MOTION FOR ENLARGEMENT OF TIME TO AMEND PETITION AND IDENTIFY WITNESSES.
OTHER FILING - COURT ORDER FILED ON 08/10/1999
JOHN R ATWOOD , JUSTICE
ON PETITIONER'S MOTION FORENLARGEMENT OF TIME TO AMEND PETITION. COPIES To ATTYS.
MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 08/10/1999
JOHN R ATWOOD , JUSTICE
IT IS ORDERED WITHIN 45 DAYS AFTER THE DATE PET.'S ATTY. RECEIVES TRANSCRIPT OF RULE 11 &
SENTENCING HEARING, COUNSEL SHALL FILE AN AMENDED PETITION OR NOTICE THAT NO AMENDED
PETITION IS TO BE FILED & THE STATE SHALL FILE A RESPONSE WITHIN 20 DAYS. WITHIN 60 DAYS
AFTER THE DATE PET.'S ATTY. RECEIVES TRANSCRIPTS, ATTY. SHALL FILE WITH THE COURT A LIST
OF WITNESSES HE EXPECTS TO CALL TO TESTIFY & A STATEMENT INDICATING EACH WITNESS'S
EXPECTED TESTIMLY.
MOTION - MOTION TO PREPARE TRANSCRIPT FILED BY DEFENDANT ON 08/09/1999
MOTION - MOTION TO PREPARE TRANSCRIPT GRANTED ON 08/10/1999
JOHN R ATWOOD , JUSTICE
COPYTO JANETTE COOK AND ELECTRONIC RECORDING
OTHER FILING - TRANSCRIPT FILED ON 09/13/1999
SENTENCING TRANSCRIPT OF 11/30/98 BEFORE JUSTICE HUMPHREY
OTHER FILING - TRANSCRIPT FILED ON 09/21/1999
Page 1 of 3 . Printed on: 01/09/2001