Petition for Writ of Certiorari — Christopher N. Bilynsky, Petitioner v. Maine

No. _____

IN THE

Supreme Court of the

United States

__________

CHRISTOPHER N. BILYNSKY,

Petitioner,

v.

STATE OF MAINE,

Respondent.

__________

On Petition for a Writ of

Certiorari to the Maine

Supreme Judicial Court Sitting

as the Law Court

__________

PETITION FOR A WRIT OF

CERTIORARI

__________

Rory A. McNamara

Counsel of Record for Petitioner

Drake Law LLC

P.O. Box 143

York, ME 03909

207-475-7810

rory@drakelawllc.com

January 27, 2022

QUESTIONS PRESENTED

The Maine Supreme Judicial Court Sitting as the Law Court (“Law Court”)

recently ruled that the Due Process Clauses of the federal constitution do not require

a court to conduct a clear, on-the-record waiver colloquy before it accepts a defense

attorney’s stipulations to elements of offenses, including elements that, by

themselves, expose a defendant to increased punishment. State v. Bilynsky, 2021 ME

56, ¶¶ 4-5, 263 A.3d 163. The Law Court’s decision expands a division among the

circuits and state courts of last resort.

The questions presented are:

(a) Do the Due Process Clauses and Boykin v. Alabama, 395 U.S. 238 (1969)

mandate that, before a trial court accepts stipulations as to elements of

offenses, including elements that by themselves increase sentencing

exposure, it conduct an on-the-record colloquy demonstrating that the

defendant knowingly, intelligently and voluntarily waives the attendant

constitutional privilege against self-incrimination and the right to a jury

trial?

(b) Where a defendant’s attorney, but not the defendant himself, signs a

stipulation to elements of offenses, including an element that, by itself,

increases sentencing exposure, and there is no colloquy demonstrating that

the defendant personally assents to the stipulations, may waiver of the

attendant constitutional privilege against self-incrimination and the right

to a jury trial be presumed?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF AUTHORITIES ......................................................................................... iii

PARTIES TO THE PROCEEDING ............................................................................ vii

RELATED PROCEEDINGS........................................................................................ vii

INTRODUCTION .......................................................................................................... 1

OPINION BELOW......................................................................................................... 3

JURISDICTION............................................................................................................. 3

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 3

STATEMENT OF THE CASE ....................................................................................... 4

I.

The State’s case against Bilynsky ...................................................................... 4

II.

Defense counsel stipulated to all but one element of the offenses .................... 4

II.

Post-trial litigation .............................................................................................. 8

REASONS FOR GRANTING THE PETITION .......................................................... 10

I.

There is a split of authority concerning whether a stipulation to an element of

an offense must be preceded by a knowing, intelligent and voluntary waiver

that is affirmatively reflected in the record ..................................................... 10

II.

The opinion below wrongly decided an important issue of federal law .......... 13

A.

An on-the-record colloquy is required by the Constitution. .................... 13

B.

The record fails to demonstrate that Bilynsky waived his federal

constitutional rights ................................................................................. 19

CONCLUSION............................................................................................................. 20

APPENDICES

Appendix A: Opinion of Maine Supreme Judicial Court Sitting as the Law Court

(Nov. 9, 2021) ....................................................................................................... 2a

Appendix B: Stipulation at issue (Mar. 26, 2019) ................................................. 11a

Appendix C: Order of York County (Maine) Unified Criminal Docket in predicate

case (Nov. 10, 2021) ........................................................................................... 12a

Appendix D: Amended charging instruments and judgments, dismissal in

predicate case (Nov. 10, 2021) ........................................................................... 13a

iii

TABLE OF AUTHORITIES

U.S. Supreme Court Cases

Alleyne v. United States, 570 U.S. 99 (2013) .............................................................. 14

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................................. 18

Blakely v. Washington, 542 U.S. 296 (2004) ............................................................... 18

Boykin v. Alabama, 395 U.S. 238 (1969) ............................................................ passim

Brookhart v. Janis, 385 U.S. 1 (1966) ......................................................................... 15

Coffin v. United States, 156 U.S. 432 (1895) .............................................................. 10

Faretta v. California, 422 U.S. 806 (1975) .................................................................. 16

Florida v. Nixon, 543 U.S. 175 (2004) ......................................................................... 14

Garrity v. New Jersey, 385 U.S. 493 (1967) ............................................................ 3, 19

Gonzalez v. United States, 553 U.S. 242 (2008).............................................. 15, 16, 17

Griffin v. California, 380 U.S. 609 (1965)................................................................... 18

Hale v. Henkel, 201 U.S. 43 (1906).............................................................................. 16

Hoffman v. United States, 341 U.S. 479 (1951) .......................................................... 14

Johnson v. Zerbst, 304 U.S. 458 (1938)................................................................. 15, 16

Malloy v. Hogan, 378 U.S. 1 (1964)....................................................................... 14, 16

McCoy v. Louisiana, 138 S.Ct. 1500 (2018) ................................................ 2, 15, 16, 18

Michigan v. Tucker, 417 U.S. 433 (1974) .............................................................. 14, 19

Miranda v. Arizona, 384 U.S. 436 (1966) ................................................................... 16

Mitchell v. United States, 526 U.S. 314 (1999) ........................................................... 14

New York v. Hill, 528 U.S. 110 (2000) .................................................................. 15, 17

iv

North Carolina v. Butler, 441 U.S. 369 (1979) ..................................................... 19, 20

Parke v. Raley, 506 U.S. 20 (1992) .............................................................................. 19

Salinas v. Texas, 570 U.S. 178 (2013) ............................................................... 2, 17, 19

Taylor v. Illinois, 484 U.S. 400 (1988) ........................................................................ 16

United States v. Ruiz, 536 U.S. 622 (2002) ................................................................. 19

State court decisions

Brown v. State, 719 So.2d 882 (Fla. 1998) .................................................................. 11

Ferguson v. State, 210 S.W.3d 53 (Ark. 2005) ............................................................ 11

In re Yurko, 519 P.2d 561 (Cal. 1974) ......................................................................... 11

People v. Adams, 862 P.2d 831 (Cal. 1993) ............................................................. 1, 11

People v. Cross, 347 P.3d 1130 (Cal. 2015) ....................................................... 1, 11, 12

People v. Isaacks, 133 P.3d 1190 (Colo. 2006)............................................................. 12

Potter v. Great Falls Ins. Co., 2020 ME 144, 243 A.3d 1188 ........................................ 9

State v Lovejoy, 2014 ME 48, 89 A.3d 1066 .................................................................. 8

State v. Allen, 220 P.3d 245 (Ariz. 2009) .................................................................... 13

State v. Bilynsky, 2021 ME 56, 263 A.3d 163 ....................................................... 3, 7, 9

State v. Cheatham, 80 P.3d 349 (Idaho App. 2003) .................................................... 12

State v. Dettman, 719 N.W.2d 644 (Minn. 2006) ........................................................ 12

State v. Harrington, 893 N.W.2d 36, 42 (Iowa 2017) ............................................. 2, 12

State v. Hauk, 652 N.W.2d 393 (Wisc. App. 2002) ..................................................... 11

State v. Leblanc-Simpson, 2018 ME 109, 190 A.3d 1015 ............................................. 5

State v. Murray, 169 P.3d 955 (Haw. 2007) ............................................................ 1, 10

v

State v. Myers, 963 A.2d 11 (Conn. 2009) ................................................................... 12

State v. Nichols, 541 S.E.2d 310 (W. Va. 1999) .......................................................... 11

State v. Ouellette, 2019 ME 75, 208 A.3d 399 ............................................................... 7

State v. Ui, 418 P.3d 628 (Haw. 2018) .................................................................... 1, 10

Federal court decisions

Adams v. Peterson, 968 F.2d 835, (9th Cir. 1992) ...................................................... 13

Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979) (per curiam) ........................................ 2, 12

Dombrowski v. Mingo, 543 F.3d 1270 (11th Cir. 2008) .......................................... 2, 12

Government of Virgin Islands v. George, 741 F.2d 643 (3d Cir. 1984) .................. 2, 12

Johnson v. Cowley, 40 F.3d 341 (10th Cir. 1994) ................................................... 2, 12

Joseph v. Butler, 838 F.2d 786 (5th Cir. 1988) ....................................................... 2, 12

United States v. Lyons, 898 F.2d 210 (1st Cir. 1990) ................................................. 13

Witherspoon v. United States, 633 F.2d 1247 (6th Cir. 1980) .................................... 13

Wright v. Craven, 461 F.2d 1109 (9th Cir. 1972) (per curiam) .............................. 2, 12

Statutes

15 M.R.S. § 1026(3)(A)(5)............................................................................................... 5

15 M.R.S. § 1026(5) (2017)............................................................................................. 5

15 M.R.S. § 1092(1)(A) ................................................................................................... 5

15 M.R.S. § 1092(1)(B) ................................................................................................... 5

17-A M.R.S. § 1252(2) (2017) ......................................................................................... 5

19-A M.R.S. § 4011(1)(A) (2018) .................................................................................... 5

28 U.S.C. § 1257(a) ........................................................................................................ 3

vi

Rules

M.R.U.Crim.P. 11 .......................................................................................................... 9

M.R.U.Crim.P. 35(c) ...................................................................................................... 8

Constitutional Provisions

Fifth Amendment................................................................................................. passim

Fourteenth Amendment ...................................................................................... passim

Sixth Amendment ................................................................................................ passim

vii

PARTIES TO THE PROCEEDING

Christopher Bilynsky, petitioner on review, was the defendant-appellant

below. The State of Maine, respondent on review, was the plaintiff-appellee below.

viii

RELATED PROCEEDINGS

Proceedings pertaining to underlying judgment:

Trial: State of Maine v. Christopher N. Bilynsky, YRKCD-CR-2018-00824

(judgment entered August 14, 2019).

Plea: State of Maine v. Christopher N. Bilynsky, YRKCD-CR-2018-00577, York

County Unified Criminal Docket (consolidated with YRKCD-CR-201800824 for sentencing) (judgment entered August 14, 2019).

Motion for correction or reduction of sentence: State of Maine v. Christopher N.

Bilynsky, YRKCD-CR-18-00577 & 00824, York County Unified Criminal

Docket (decision entered August 26, 2020).

Related discretionary appeal (from denial of mot. for correction or reduction of

sentence): State of Maine v. Christopher N. Bilynsky, Yor-20-246, Maine

Supreme Judicial Court Sitting as the Law Court (decision entered April

28, 2021).

Direct appeal/ruling below: State of Maine v. Christopher N. Bilynsky, Yor-20246, Maine Supreme Judicial Court Sitting as the Law Court (decision

entered November 9, 2021).

Collateral review: Christopher N. Bilynsky v. State of Maine, YRKCD-CR-2020368, 369 (currently held in abeyance).

Proceedings regarding related, predicate judgment:

Plea: State of Maine v. Christopher N. Bilynsky, YRKCD-CR-2017-1024 & CR18-89 (judgment entered April 20, 2018).

ix

RELATED PROCEEDINGS-Continued

Collateral review: Christopher N. Bilynsky v. State of Maine, YRKCD-CR-2019423 (order entered November 10, 2021).

1

INTRODUCTION

Christopher Bilynky’s trial attorney stipulated to all but one of the elements

of the two offenses with which he was charged; the trial court read the stipulations

into evidence despite the lack of a record demonstrating that Bilynsky knowingly,

intelligently and voluntarily waived his attendant privilege against selfincrimination and right to have a jury trial. The stipulations encompassed an array

of information the prosecution would have otherwise had to prove beyond a

reasonable doubt, ranging from Bilynsky’s prior convictions and status on bail to his

actual knowledge that the conduct in which he allegedly engaged was prohibited. The

stipulation, by itself, increased Bilynsky’s sentencing exposure from only 180 days’

jail to five years’ imprisonment.

State supreme courts and the circuits are largely split over the lawfulness of

such stipulations absent on-the-record colloquies, and the Maine court’s decision

deepens this fissure. Some, notably the highest court of Hawaii, require extensive

waiver colloquies before accepting stipulations to any elements of offenses, citing the

Fourteenth Amendment. See State v. Ui, 418 P.3d 628, 635 (Haw. 2018); State v.

Murray, 169 P.3d 955, 965 (Haw. 2007). Others, such as California state courts, do

not require personal, on-the-record waiver colloquies prior to just any stipulation to

elements of offenses, see People v. Cross, 347 P.3d 1130, 1139 (Cal. 2015), but do

require such colloquies prior to accepting stipulations to elements that do, alone,

increase sentencing ranges. People v. Adams, 862 P.2d 831, 839 (Cal. 1993). The

Iowa Supreme Court, and the Third, Eighth and Ninth Circuits are in accord with

2

this latter interpretation, believing it to derive from federal constitutional law. See

State v. Harrington, 893 N.W.2d 36, 42, 45-47 (Iowa 2017); Government of Virgin

Islands v. George, 741 F.2d 643, 649 (3d Cir. 1984); Cox v. Hutto, 589 F.2d 394, 39596 (8th Cir. 1979) (per curiam); Wright v. Craven, 461 F.2d 1109 (9th Cir. 1972) (per

curiam). The Fifth and Tenth Circuits disagree. Joseph v. Butler, 838 F.2d 786, 791

(5th Cir. 1988); Johnson v. Cowley, 40 F.3d 341, 346 (10th Cir. 1994). The Eleventh

Circuit has skirted the issue, noting no “clearly established federal law.” Dombrowski

v. Mingo, 543 F.3d 1270, 1275-76 (11th Cir. 2008).

The Maine court’s decision

deepens this divide.

Indeed, under the Sixth Amendment, these are “not easy questions.” McCoy v.

Louisiana, 138 S.Ct. 1500, 1516-17 (2018) (Alito, J., dissenting). However, this Court

should grant this petition to clarify that a partial answer already exists under the

Due Process Clauses. Boykin v. Alabama, 395 U.S. 238, 243 (1969) established the

necessity of a clear, on-the-record waiver of three constitutional rights, including the

privilege against self-incrimination. Clarity from this Court would, of course, resolve

a split; it would also ensure a fair way forward and coherence with this Court’s caselaw regarding the privilege against self-incrimination, which does not require a

defendant at his own trial to invoke the privilege to preserve it. Salinas v. Texas, 570

U.S. 178, 184 (2013) (plurality decision). Likewise, A decision along these lines would

also forestall the need for wasteful posttrial litigation concerning the permissibility

of counsel’s ostensible waiver on behalf of her clients, giving sooner finality to those

in the criminal justice system.

3

OPINION BELOW

The Maine Supreme Judicial Court Sitting as the Law Court’s decision is

reported at 2021 ME 56, 263 A.3d 163 and 2021 Me. LEXIS 60. Pet. App. 2a-10a

JURISDICTION

The Maine Supreme Judicial Court issued the decision below on November 9,

2021. Pet. App. 2a.

This Court has jurisdiction under 28 U.S.C. § 1257(a). See also

Garrity v. New Jersey, 385 U.S. 493, 498 (1967) (waiver of constitutional right “is a

federal question for us to decide.”).

CONSTITUTIONAL PROVISIONS INVOLVED

“[N]or shall any person…be compelled in any criminal case to be a witness

against himself, nor be deprive of life, liberty, or property without due process of

law….” U.S. CONST. amend V

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his defense.” U.S. CONST. amend VI.

“[N]or shall any state deprive any person of life, liberty, or property, without

due process of law….” U.S. CONST. amend XIV, § 1.

4

STATEMENT OF THE CASE

I.

The State’s case against Bilynsky

The State obtained an indictment charging Bilynsky with two offenses:

violating a bail condition and violating a court-imposed protective order. Pet. App.

5a-6a. Both alleged violations stemmed from the same conduct. According to the

State, while he was incarcerated at the local jail, Bilynsky attended church services

at the jail’s gymnasium-cum-chapel. Pet. App. 3a. While seated there on July 31,

2018, female prisoners were brought into the chapel, including Ashley Cox, with

whom, per defendant’s allegedly-then-effective bail conditions and the terms of the

protective order, defendant was not permitted to have “contact.” Pet. App. 3a.

At trial, the State played a video that depicted the chapel, in which Bilynsky

turned around and gestured in the direction of Ms. Cox. Tr. 91-93. Ms. Cox testified

that Bilynsky greeted her, “Hi, how are you? Are you keeping your head up?” Tr. 93.

He “mouthed” words to her from across the room, but she could not make out what

he was saying in the loud room. Tr. 102. At the conclusion of the services, Ms. Cox

walked toward Bilynsky’s seat, stopping to interact with him. Tr. 111-12. At that

time, Bilynsky asked Ms. Cox whether she had spoken with his lawyer and private

investigator. Tr. 90.

II.

Defense counsel stipulated to all but one element of the offenses.

To prove its case, on paper, the State had to establish several elements beyond

a reasonable doubt.

On Count One (bail violation), the State had to prove: (1)

Bilynsky was on bail; (2) a bail condition prohibited him from directly or indirectly

5

contacting Cox; (3) the offense for which Bilynsky on bail was a felony matter (i.e., a

crime punishable by a year or more of incarceration); (4) Cox was “a victim” in that

felony matter; (5) Bilynsky had “prior knowledge” of the bail condition prohibiting his

contact with Ms. Cox while he was incarcerated (i.e., not merely when he was “out”

on bail).1 15 M.R.S. § 1092(1)(B); 15 M.R.S. § 1026(3)(A)(5); State v. Leblanc-Simpson,

2018 ME 109, ¶ 18, 190 A.3d 1015. The elements requiring proof that the bail

condition had been imposed in a felony-level case in which Ms. Cox was “the victim,”

by themselves, elevated the Count One from a Class E misdemeanor (punishable by

up to 180 days’ jail) to a Class C felony (punishable by up to 5 years’ prison). 15

M.R.S. §§ 1092(1)(A), (B); 17-A M.R.S. §§ 1252(2)(C), (E) (2017). In other words, by

stipulating to elements (3) and (4), defense counsel automatically exposed defendant

to a more than 10-times increase in incarceration.

Regarding Count Two (violation of protective order), the State was required to

evince sufficient proof that: (1) Bilynsky was subject to a protective order; (2) he had

“prior actual notice” of that order; and (3) he violated a condition of that order. 19-A

M.R.S. § 4011(1)(A) (2018).

Additionally, when a defendant “assert[s]” at trial that he lacked such

knowledge, the State is further required to prove that he “was advised of the penalties

for and consequences of violating’” the condition in question. Leblanc-Simpson, 2018

ME 109, ¶ 20; see 15 M.R.S. § 1026(5) (2017). The jury was not instructed about this

element, presumably because the stipulation caused the trial judge to believe that

Bilynsky did not “assert[]” a lack of the requisite knowledge.

1

6

Immediately preceding the jury-trial, defense counsel, the prosecutor and the

trial judge convened a chambers conference without Bilynsky. There, the attorneys

discussed stipulating to several elements of the charges and the admissibility of the

State’s video evidence. The transcript of the conference indicates that Bilynsky’s

attorney said he wanted to review the proposed stipulations with Bilynsky before he

agreed to them. Tr. 9-11, 49-50. After the judge and attorneys had hashed out the

details of the stipulation, the judge asked defense counsel – now at sidebar, without

Bilynsky – whether Bilynsky wanted to be present at sidebars or in chambers; counsel

stated he did not. Tr. 62

The record does not contain any further indication that Bilynsky was advised

of the proposed stipulations, that he understood them, or that he voluntarily agreed

to waive his right to insist that the State affirmatively prove them.

Rather,

Bilynsky’s lawyer signed an eight-point “Stipulation” that was read to the jury on the

heels of the attorneys’ opening statements:

So, ladies and gentlemen, the attorneys for the State and for Mr.

Bilynsky have reached some agreements, some stipulations. And I’m

going to read those to you now.

The following is stipulated to be – is stipulated to by the State

and the defense and shall be entered as part of the evidence in this

matter.

Number one: State’s Exhibit No. 1, the video of the York County

Jail’s chapel from July 31st, 2018, you’re going to watch that in just a

moment.

Number two, on or about July 31st, 2018, Christopher Bilynsky

was on pre-conviction bail for a crime punishable by a maximum period

of imprisonment of one year or more.

Number three, as part of the preconviction bail, there was a

condition of no contact with Ashley Cox.

7

Number four, Ashley Cox was the victim of the alleged crime that

Christopher Bilynsky was on bail for.

Number five, Christopher Bilynsky received notice of these bail

conditions by a judge on June 22nd, 2018.

Number six, on or about July 31st, 2018, there was an active final

protective order against Christopher Bilynsky issued by a court in the

State of Maine.

Number seven, the final protective order prohibited Christopher

Bilynsky from having direct of indirect contact with Ashley Cox.

And, finally, number eight, Christopher Bilynsky received notice

of this final protective order by law enforcement on July 16, 2018.

Tr. 69-70; Pet App. 11. As the attorneys saw it, and as they told the jury in their

argumentation, the sole remaining issue for deliberation was whether Bilynsky had

“contact” with Ms. Cox. See, e.g., Tr. 63-64, 65, 187, 197.

After the trial judge instructed the jury to consider the stipulations as if they

were evidence,2 he further enumerated all the elements that the State was required

to prove to convict Bilynsky. Tr. 185, 218-21. The jury later asked for, and was given,

reinstruction on those elements. Tr. 239-43. Four minutes after the reinstruction,

the jury returned “guilty” verdicts on both counts. Tr. 243.

At sentencing a few months later, Bilynsky was sentenced to 48 months’ and

364 days’ incarceration, respectively, to be served concurrently. Pet App. 3a-4a.

Actually, as the decision below reaffirms, the judge was incorrect: In

Maine, a stipulation is more than mere evidence; it “‘relieve[s]’” the State “of the

burden of introducing evidence other than the stipulation itself to prove [the relevant]

element.” 2021 ME 56, ¶ 10 (quoting State v. Ouellette, 2019 ME 75, ¶ 12, 208 A.3d

399)).

2

8

III.

Post-trial litigation

About a month after sentencing, Bilynsky filed a motion to correct or reduce

his sentence, and a hearing on the motion was held nearly a year later.

See

M.R.U.Crim.P. 35(c); Pet. App. 5a. At the hearing, Bilynsky stated that he had not

agreed to the stipulations.

R35Tr. 34-35. Bilynsky represented that, factually,

certain of the stipulations were incorrect, particularly those concerning notice of the

bail condition. R35Tr. 36-37. The motions court denied Bilynsky’s motion orally on

state procedural grounds, determining that those arguments were not cognizable in

such a proceeding. R35Tr. 35, 37. The Law Court denied Bilynsky leave to pursue

an appeal of that ruling, also on state procedural grounds. Order Denying Cert. of

Probable Cause, Yor-20-246, April 28, 2021.

Bilynsky then pursued a direct appeal of his convictions, arguing, inter alia,

that he was deprived of due process by the use of the stipulation as evidence without

a record establishing that he acknowledged or agreed to relieve the State of its

burdens. He also argued that he lacked “prior notice” of the stipulation such that it

should not have been entered as evidence. The Law Court affirmed, addressing these

arguments in two paragraphs:

Bilynsky contends that he never agreed to the stipulation—or the

facts it contained—which encompassed nearly every element the State

was required to prove beyond a reasonable doubt. Because Bilynsky

failed to object or otherwise challenge the admission or reference to the

stipulated facts at trial, we review his challenge for obvious error. See

State v Lovejoy, 2014 ME 48, ¶ 19, 89 A.3d 1066. To vacate a conviction

based on obvious error, "there must be (1) an error, (2) that is plain, and

(3) that affects substantial rights." Id. (quotation marks omitted). When

those conditions are met, "we will exercise our discretion to notice an

unpreserved error only if we also conclude that (4) the error seriously

9

affects the fairness and integrity or public reputation of judicial

proceedings." Id. (quotation marks omitted).

"The best practice for parties wishing to enter into a stipulation

is to either file a written stipulation signed by the parties or their

attorneys or orally enter the stipulation on the record." Potter v. Great

Falls Ins. Co., 2020 ME 144, ¶ 10 n.4, 243 A.3d 1188. Here, a written

stipulation signed by both attorneys was filed with the court.

Additionally, the record demonstrates that the stipulation was

discussed, read, or referenced at least seven times in Bilynsky's presence

during the trial, including by his admissions to its stated facts in his

own opening and closing arguments. At no time did Bilynsky or his

attorney object to the stipulation or any of its facts at trial. Although

Bilynsky now argues that the judge should have conducted the

equivalent of a M.R.U. Crim. P. 11 colloquy with him on the record to

confirm that he agreed to the contents of the stipulation, he fails to offer

any authority mandating such a colloquy. Because the stipulation of

facts was signed by both attorneys and was filed with the court, the trial

court committed no error, and certainly no plain error, that affected

Bilynsky's substantial rights by reading the stipulation to the jury.

2021 ME 56, ¶¶ 4-5; Pet. App. 5a-6a.

In the meantime, Bilynsky sought state post-conviction review in the predicate

case, the one in which he was allegedly on bail when he contacted Ms. Cox in the jail

chapel. Docket rec. in YRKCD-CR-2019-423. The day after Bilynsky’s direct appeal

– the decision below – was denied, the post-conviction court entered an order

amending that predicate charge to reflect that Bilynsky was then charged with a

misdemeanor – a charge that would not have qualified to elevate his maximum

sentence in this case from 180 days’ to 5 years’ prison, counter to the stipulation his

attorney had entered at trial. Pet. App. 13a-22a.

10

REASONS FOR GRANTING THE PETITION

I.

There is a split of authority concerning whether a stipulation to an

element of an offense must be preceded by a knowing, intelligent

and voluntary waiver that is affirmatively reflected in the record.

The Law Court is of the view that there is “no authority” requiring a trial court,

before entering a stipulation establishing an element of an offense, to ensure on the

record that the defendant is knowingly, intelligently and voluntarily waiving the

constitutional rights that stipulation encapsulates. 2021 ME 56, ¶ 5. Other state

courts of last resort, however, split over this question, particularly as it relates to

elements that, by themselves, increase a defendant’s sentencing exposure.

For instance, the highest court of Hawaii requires that trial courts accepting

such stipulations first “engage a defendant in an on-the-record colloquy to ensure that

the defendant is intelligently, knowingly, and voluntarily relinquishing” the right to

require the State to prove all elements. State v. Ui, 418 P.3d 628, 631 (Haw. 2018).

This requirement has existed in Hawaii state courts since at least 2007. See State v.

Murray, 169 P.3d 955, 964 (Haw. 2007) (“[T]he trial court must conduct a colloquy

regarding waiver of proof of an element of the offense.”). The Hawaii courts reason

that, because stipulations to elements of offenses work a waiver of the fundamental

right to be presumed innocent unless and until the prosecution proves otherwise, an

on-the-record waiver is necessary. Ui, 418 P.3d at 635 (citing Coffin v. United States,

156 U.S. 432, 453 (1895)).

Other state supreme courts require colloquies before defendants stipulate to

elements of offenses, though it is unclear whether they do so pursuant to federal

11

constitutional law or their own superintendence powers. See, e.g., Ferguson v. State,

210 S.W.3d 53, 58 (Ark. 2005) (trial court to accept stipulation “conditioned by an onthe-record colloquy with the defendant…acceding to the stipulation or admission.”);

Brown v. State, 719 So.2d 882, 884 (Fla. 1998) (same); State v. Nichols, 541 S.E.2d

310, 323 (W. Va. 1999) (“When such a stipulation is made, the record must reflect a

colloquy between the trial court, the defendant, defense counsel and the state

indicating precisely the stipulation and illustrating that the stipulation was made

voluntarily and knowingly by the defendant.”); see also State v. Hauk, 652 N.W.2d

393, 402-03 (Wisc. App. 2002) (invalid waiver when stipulation is signed by the

defendant’s attorney and not the defendant herself).

Other states, such as California, take a more nuanced position. Whereas

stipulations to facts that alone satisfy a “‘prerequisite’ for increased punishment”

must be preceded by a Boykin-style colloquy and waiver, see In re Yurko, 519 P.2d

561, 565 (Cal. 1974), stipulations to other elements do not, so long as some other

factual element remains to be proven. People v. Cross, 347 P.3d 1130, 1139 (Cal.

2015).

The

dividing

line

is

whether

“the

defendant’s

unwarned

admission…automatically exposed him to increased punishment.” Ibid; People v.

Adams, 862 P.2d 831, 839 (Cal. 1993).

Frequently, the issue arises in the context of sentencing enhancements. For

example, recognizing the “constitutional dimension” of the rights at stake, the Third

Circuit has required a quasi-Boykin inquiry before a district court judge accepts a

defendant’s admission to having a prior conviction. Government of Virgin Islands v.

12

George, 741 F.2d 643, 649 (3d Cir. 1984). The Eighth and Ninth Circuits have held

similarly.

Cox v. Hutto, 589 F.2d 394, 395-96 (8th Cir. 1979) (per curiam)

(“constitutional error” where stipulation to prior offenses read into evidence without

on-the-record colloquy); Wright v. Craven, 461 F.2d 1109 (9th Cir. 1972) (per curiam)

(same). The Fifth and Tenth Circuits have decided otherwise. Joseph v. Butler, 838

F.2d 786, 791 (5th Cir. 1988); Johnson v. Cowley, 40 F.3d 341, 346 (10th Cir. 1994).

The Eleventh Circuit has punted, noting a lack of “consensus amongst the lower

federal courts” and the absence of “clearly established federal law” on the question.

Dombrowski v. Mingo, 543 F.3d 1270, 1275-76 (11th Cir. 2008). State courts that

have taken up the issue have held that a Boykin-like colloquy is required only when

a stipulation itself – without need for any additional facts – justifies an increased

sentence. Cross, 347 P.3d at 1139; State v. Myers, 963 A.2d 11, 23-24 (Conn. 2009)

(stipulation by counsel without on-the-record colloquy acceptable because there was

other evidence of prior convictions); State v. Harrington, 893 N.W.2d 36, 42, 45-47

(Iowa 2017) (stipulation to prior convictions necessary for “sentencing enhancement”

must be preceded by on-the-record- colloquy to ensure knowing and voluntary

waiver); see State v. Dettman, 719 N.W.2d 644, 650-51 (Minn. 2006) (ascribing right

to Sixth Amendment right to jury trial); People v. Isaacks, 133 P.3d 1190, 1194-95

(Colo. 2006) (same); see also State v. Cheatham, 80 P.3d 349, 354 (Idaho App. 2003)

(“[D]ue process principles preclude the acceptance of a stipulation to the truth of

persistent violator allegations without judicial inquiry to determine that the

13

defendant makes the admission voluntarily and with an understanding of the

consequences.”).

In the context of stipulations at trial that are not, by themselves, “tantamount”

to guilty pleas, many jurisdictions do not see a federal constitutional requirement for

a colloquy. See, e.g., State v. Allen, 220 P.3d 245, 247-48 (Ariz. 2009) (“Boykin does

not require a colloquy in this case.”); Adams v. Peterson, 968 F.2d 835, 840-42 (9th

Cir. 1992) (due process merely requires knowing and voluntary stipulation, not

colloquy); United States v. Lyons, 898 F.2d 210, 215-16 (1st Cir. 1990) (though

“complete” colloquy not constitutionally mandated, record must demonstrate that

defendant “understood the nature and scope of his stipulation.”); Witherspoon v.

United States, 633 F.2d 1247, 1251 (6th Cir. 1980) (though “full” colloquy not

required, “suggest[ing]” that district courts conduct one anyway when most or all

elements stipulated). Maine now falls on this side of the rift.

II.

The opinion below wrongly decided an important issue of federal

law.

A.

An on-the-record colloquy is required by the Constitution.

Presuming waiver of the rights inherent in a guilty plea from a silent record is

impermissible. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Specifically, a

colloquy must demonstrate a valid waiver of “the privilege against compulsory selfincrimination,” “the right to trial by jury,” and “the right to confront one’s accusers.”

Id. at 243. No court may “presume a waiver of these three important federal rights

from a silent record.” Ibid.

14

Put aside for a moment the second and third of these rights; arguendo, a

defendant who stipulates to some (even most) but not all elements of an offense

retains his rights to have a jury trial and to confront some accusers. However, a

stipulation to an element ineluctably cedes the privilege to stay silent and refrain

from self-incrimination. See Malloy v. Hogan, 378 U.S. 1, 11-12 (1964) (“The privilege

afforded not only extends to answers that would in themselves support a conviction

but likewise embraces those which would furnish a link in the chain of evidence

needed to prosecute.” (ellipses omitted) (quoting Hoffman v. United States, 341 U.S.

479, 486 (1951)); see Alleyne v. United States, 570 U.S. 99, 109 (2013) (“If a fact was

by law essential to the penalty, it was an element of the offense.”). That privilege

dissipates the moment a judge accepts a stipulation. Michigan v. Tucker, 417 U.S.

433, 440-41 (1974) (“[A]n inability to protect the right at one stage of a proceeding

may make its invocation useless at a later stage.”); cf. Mitchell v. United States, 526

U.S. 314, 324 (1999) (“[S]tatements or admissions made during the preceding plea

colloquy are later admissible against the defendant, as is the plea itself.”). Reading

Boykin closely and in the context of the privilege against self-incrimination, then, the

Due Process Clause requires that any stipulation to an element of an offense be

preceded by an on-the-record colloquy demonstrating a knowing and intentional

waiver. See 395 U.S. at 243.

Looking to the Sixth Amendment, respectfully, is a distraction. See Florida v.

Nixon, 543 U.S. 175, 192 (2004) (“When counsel informs the defendant of the strategy

counsel believes to be in the defendant's best interest and the defendant is

15

unresponsive, counsel's strategic choice is not impeded by any blanket rule

demanding the defendant's explicit consent.”); cf. Brookhart v. Janis, 385 U.S. 1, 7

(1966) (where record demonstrates that the defendant did not intelligently and

knowingly agree to “the equivalent of a guilty plea,” counsel cannot waive rights

inherent in such a plea); cf. McCoy v. Louisiana, 138 S.Ct. 1500, 1505, 1510 (2018)

(Sixth Amendment violation when record demonstrates that the defendant

“adamantly objected” to conceding guilt but counsel nonetheless concedes guilt to

jury). Looking only through the lens of the right to counsel begs several “not easy

questions,” including whether an attorney may stipulate to elements of offenses

without her client’s consent at all, let alone without a record affirmatively

establishing such consent. McCoy, 138 S.Ct. at 1516-17 (Alito, J., dissenting). Rather

than looking for these answers in the attorney-client relationship, due process has an

altogether different focus: For a “waiver to be valid under the Due Process Clause, it

must be ‘an intentional relinquishment or abandonment of a known right or

privilege.’” Boykin, 395 at 243 n. 5 (quoting Johnson v. Zerbst, 304 U.S. 458, 464

1938)). Regardless of an attorney’s duty, in other words, the presiding judge has her

own responsibilities.

Indeed,

this

Court’s

decisions

already

recognize

the

due

process

responsibilities of judges when such weighty rights are at stake. It delegates to

attorneys those decisions necessary to “manage the conduct of the trial.” Gonzalez v.

United States, 553 U.S. 242, 248 (2008) (quoting New York v. Hill, 528 U.S. 110, 11415 (2000) (internal quotation marks and citation omitted)). But it reserves for judges

16

the due process obligation to safeguard “certain fundamental rights” by requiring

that they see to it that a defendant “participate[s] personally in the waiver” of those

rights. Gonzalez, 553 U.S. at 248 (quoting Hill, 528 U.S. at 114). Within the class

are the right to counsel, Zerbst, 304 U.S. at 464-65; Faretta v. California, 422 U.S.

806, 835 (1975); the right to be present at trial, Taylor v. Illinois, 484 U.S. 400, 418

n. 24 (1988); and, of course, the three rights noted in Boykin: the privilege against

self-incrimination, the right to confront one’s accusers, and the right to trial by jury.

395 U.S. at 243; Taylor, 484 U.S. at 418 n. 24.

There should be no doubt that the Fifth Amendment privilege against selfincrimination at trial, extended to the states via the Fourteenth Amendment, Malloy,

378 U.S. at 8, qualifies as such a “fundamental right” as to necessitate a personal

waiver overseen by a judge.

Indeed, the privilege is uniquely personal, “an

individual’s substantive right, a right to a private enclave where he may lead a

private life.” Miranda v. Arizona, 384 U.S. 436, 460 (1966) (quotation marks omitted).

It “is purely a personal privilege of the witness,” Hale v. Henkel, 201 U.S. 43, 69

(1906), that may be waived only when that individual “’chooses to speak in the

unfettered exercise of his own will.’” Miranda, 384 at 460 (quoting Malloy, 378 U.S.

at 8). Whereas many a defendant may choose not “to participate in his [own] defense,”

McCoy, 138 S.Ct. at 1509, thereby justifying the need for his attorney to retain

authority over tactical matters, the constitutional privilege against self-incrimination

embodies a “choice on his part to speak.” Miranda, 384 U.S. at 465. It would be

peculiar to allow someone else – even a lawyer – to waive such a personal right. In

17

fact, it is petitioner’s contention that this Court already does not allow that. See

Boykin, 395 U.S. at 243.

The decision whether to incriminate oneself is not akin to a decision regarding

mere “[s]cheduling matters,” Hill, 528 U.S. at 115, or whether to accede to a

magistrate rather than an Article III judge presiding over jury selection, Gonzalez,

553 U.S. at 250. Rather, the decision to incriminate oneself forgoes “the essential

mainstay of our adversary system.” Miranda, 384 U.S. at 460. This must qualify as

a “fundamental” right of the sort necessitating a personal, on-the-record waiver.

Moreover, this Court’s self-incrimination case-law already requires an

affirmative waiver to relinquish the right. Salinas v. Texas, 570 U.S. 178, 184 (2013)

(plurality decision) (“[A] criminal defendant need not take the stand and assert the

privilege at his own trial.”).

Permitting self-incrimination by stipulation

unaccompanied by a clear waiver muddies these doctrinal waters: Has such a

defendant preserved his privilege by remaining silent and not asserting the privilege?

See id. at 185 (“[W]here assertion of the privilege would itself tend to incriminate, we

have allowed witnesses to exercise the privilege through silence.”).

Requiring a

defendant to blurt out in open court – counter to his attorney’s admissions and the

judge’s recitation of the stipulation – “I do not agree!”3 both requires assertion of the

Recall that, while at sidebar (and thus, out of Bilynsky’s earshot), Bilynsky’s

attorney declined the judge’s invitation for Bilynsky to participate in sidebar and

chambers conferences. Tr. 62.

3

18

privilege and undermines its efficacy. See Griffin v. California, 380 U.S. 609, 613-15

(1965) (recognizing threat that jurors will infer guilt from silence and comment on

silence).

In other words, absent an on-the-record colloquy prior to a judge’s

acceptance of a stipulation, this Court’s case-law on when and how a defendant

preserves his privilege against self-incrimination lacks coherence.

Above, Bilynsky asked the Court to momentarily put aside two rights

guaranteed by Boykin and its progeny; now, he returns to the right to a jury trial, one

of those rights. 395 U.S. at 243. In Blakely v. Washington, 542 U.S. 296, 310 (2004),

this Court wrote of the need for “appropriate waivers” before sentences are enhanced

beyond those justified by facts found by a jury. Defendants who stipulate to elements

that, by themselves, enhance a sentence are forgoing their jury-trial rights; they have

the right to insist that jury find every fact necessary to increase a sentence. Id. at

301-02; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). How does due process

therefore not already require a Boykin-style inquiry to ensure that a defendant knows

he is volunteering to surrender that right? Boykin, 395 U.S. at 243.

It is not satisfactory to put off such questions until post-conviction proceedings.

Yes, post-conviction, a fact-finder may finally decide whether a defendant knowingly

and voluntarily acceded to a stipulation or whether an ineffective attorney instead

“waived” the rights involved on behalf of his client; but problems are caused by

putting off the determination. First, what is the standard? As Justice Alito’s dissent

in McCoy makes clear, nobody knows whether a defendant or his attorney gets to cast

the deciding vote whether to stipulate. 138 S.Ct. at 1516-17 (Alito, J., dissenting).

19

Those thorny issues could be avoided by ensuring an appropriate waiver when it is

offered. Second, how might stipulations – now record evidence admitted at trial – be

crammed back into the bottle so that they shall not be used to incriminate defendant

in future proceedings? See Tucker, 417 U.S. at 440-41. Third, must courts, parties

and witnesses suffer sustained delays in finality because of something so

fundamental as a waiver of the privilege against self-incrimination? Fourth, leaving

the matter to collateral review essentially flips the due process burden concerning

waivers; a “presumption of regularity” applies to claims of waiver of constitutional

rights raised after a conviction becomes final. Parke v. Raley, 506 U.S. 20, 31 (1992).

B.

The record fails to demonstrate that Bilynsky waived his federal

constitutional rights.

The putative waiver of a federal constitutional right is a federal question for

this Court to decide. Garrity v. New Jersey, 385 U.S. 493, 498 (1967). It is the State

of Maine’s responsibility to ensure that Bilynsky “‘knowingly, intelligently, and with

sufficient awareness of the relevant circumstances and likely consequences,’” waived

his privilege against self-incrimination. United States v. Ruiz, 536 U.S. 622, 629

(2002) (brackets omitted) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

Recall again, “a criminal defendant need not take the stand and assert the privilege

[against self-incrimination] at his own trial.” Salinas, 570 U.S. at 184. “The courts

must presume that a defendant did not waive his rights; the prosecution’s burden is

great….” North Carolina v. Butler, 441 U.S. 369, 373 (1979).

Taking the undisputed facts – counsel, not Bilynsky himself, signed the

stipulations; counsel, without Bilynsky, negotiated the stipulations before they were

20

made; and, as the Law Court noted, neither Bilynsky nor counsel objected when the

stipulations were “discussed, read, or referenced at least seven times in Bilynsky’s

presence”4 – how has the State of Maine demonstrated a waiver? On this record, how

has the State demonstrated that Bilynsky was “adequately and effectively apprised”

that he did not have to stipulate to elements of the offenses? Id. at 374? Because

there was no “affirmative showing” that Bilynsky intelligently and voluntarily gave

up his privilege to self-incrimination or his right to a jury trial, the State has not

established a constitutionally valid waiver. Boykin, 395 U.S. at 242.

CONCLUSION

This Court should grant the petition for a writ of certiorari, summarily

granting, vacating and reversing, or calling for proceedings in the usual course.

January 27, 2022

Respectfully submitted,

Rory A. McNamara

Counsel of Record for Petitioner

DRAKE LAW LLC

P.O. Box 143

York, ME 03909

(207) 475-7810

rory@drakelawllc.com

Deprived of the opportunity to appear at sidebar or in chambers because

his attorney declined the invitation – without Bilynsky’s apparent assent – how, short

of causing a scene in front of the jurors about to judge him, was Bilynsky to object to

these references, assuming he comprehended them and their importance?

4