Petition for Writ of Certiorari — Chisholm v. Maine (No. 06-1477)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

reme Court, U.S.

Y me FILED

——

06147 7MAR 7 - 2007

NO PRICE OFTHE CLERK

ae ee ce es es oe ee

—_— eee ee ee ae ee ee es ee ee ae ee

du The

Supreme Court of the Anited States

ere ee es Cee

—— ee ee ee ES ie ee ee eee

DONALD D. CHISHOLM,

Pro Se Petitioner,

VS.

THE STATE OF MAINE,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Judicial Court,

Sitting As The Law Court

Of The State of Maine

PETITION FOR A WRIT OF CERTIORARI

Donald D. Chisholm

37 Knickerkane Rd.

Boothbay, Me. 04537

(207) 542-1952

Pro Se Petitioner

QUESTIONS PRESENTED

I. Whether a newly .enacted Maine Criminal

Statute applies to the prosecution of a case where

the maximum sentence for the alleged current

criminal behavior is raised for the fact of a prior

conviction. The prior conviction occurred 12 years

before the effective date of the new statute

defining the crime and its inclusion as an element

in the indictment increases considerably the

maximum allowable sentence otherwise available

by statute. Does the ex post facto clause of the

United States Constitution prohibit the inclusion

of the prior conviction as an element of the crime

because it occurred before the effective date of the

statute?

Il. Was Chisholm afforded the due process of law

as provided in the Fourteenth Amendment of the

United States Constitution.

LIST OF THE PARTIES

petitioner

Donald D. Chisholm

37 Knickerkane Road

Boothbay, Me. 04537

for the State of Maine

Geoffrey Rushlau, D.A.

Lincoln County Courthouse

High Street

P.O. Box 249

Wiscasset, Me. 04578-0249

copy of petition to:

for the State of Maine

G. Steven Rowe

Attorney General

6 State House Station

Augusta, ME 04333-0006

TABLE OF CONTENTS

PRPS CAAPEOD © RRR EE DOOD oes ns vcd sine ven ves ove venvectoct

Beye gy Oy S 2k | Sy nnn

peo OE Bt ees be fe en ees

bee Me Bg ks ree |

SPR GOW FAAS ERIE 8 AES Bioee vnc see cevccscsscsecns suns Wh

SPF APN ETe MIE ei vic chs vav anis'nni svacuntseweuver den vevven’

I FI cig Suk oa dasa tedsde dar sid ckewsessscermioes 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..........0..0.ccccceccccee cee

PEE MPUG © GEE BREE GPR one wes sini vewnss vacenecesens snes?

STATEMENT OF PRESENT LEGAL CASE...... 11

ROCCE, TONNE Bonga beeice cre tye vanveesducterssanale

a Ba | er nnn >

REASONS FOR GRANTING THE PETITION...26

Sa NI inls ass vip sunk haseds dadans eke adi sueiaaaaenee

gg ts) ae Rr rmmmem © Re otk

INDEX TO APPENDICES

Page

APPENDIX A DECISION AND ORDER.. App. 1

APPENDIX B MEMORANDUM IN

~ SUPPORT OF

CERTIFICATE OF

PROBABLE CAUSE TO

ig gt) eae

APPENDIX C ORDER DENYING

CERTIFICATE OF

PROBABLE CAUSE...... App.50

APPENDIX D_ M.R.S.A. 29-A § 2411

Criminal OUL........-......5 ABP. S2

APPENDIX E_ Title 15, Chapter 305-A

Post Conviction Review. App.58

APPENDIX F _ Defendant’s Letter to

E. Allen Hunter.......... App.68

APPENDIX G ISSUES AND LAW

Rule 35 Table of Contents. App.70

APPENDIX H ORDER DENYING

CERTIFICATE OF

PROBABLE CAUSE

CRUE DO Picinsscdeseceesccass | Ta

APPENDIX I PETITION FOR POST

- CONVICTION REVIEW.. App.75

APPENDIX J LD 2406, Maine

Legislative Bill... ........+. App.86

APPENDIX K_ Defendant, Donald D.

Chisholm’s Motion for

Dismissal of Complaint

for Operating Under

Influence, Cless C,

Title 29-A M.R.S.A.

§2411(1) Docket No.

CR-2001-00086............. App.89

APPENDIX L_ Affidavit of Thomas

F. Hallett, Attorney

BE RE eee

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

88, 02, 13, 93, 19, 2

Almendarez-Torres v. United States, 523 U.S. 224

PROUD < 2: ccucmecschusiedacecaswapecsa<idtev akon 17

Beazell v. State of Ohio, 269 U.S. 167 (1925)

Calder v. Bull, 3 U.S. 386 (1798)

California Dept. Of Corrections v. Morales, _

S (1995)

ccd ance eMebewed CANS 4k ouWean ees SEG suv auneeelytentete tauadeals 15

Collins v. Youngblood, 497 U.S. 37 (1990)

Cunningham v. California, No. 05-6551 Supreme

Court of United States (2007)................. 18, 27

Dobbert v. Florida, 432 U.S. 282 (1977)

Jones v. United States, 526 U.S. 227 (1999)

Kring v. State of Missouri, 107 U.S. 221 (1883)

ev atn Laikaydear bakes esi tee 15, 17

GOGH 5 cis cnc cicsccnecsiarosiccu een 15

Landry v. State, 575 A.2d 315, 316-17 (Me. 1990)

cap sndoat daciecteve i000 Alakuldocs ee

Lindsey v. State of Washington, 301 U.S. 397

McMillan v. Pennsylvania,477 U.S. 79 (1986)

Peeaene seeudie sewgaeein tae eee a eae

Miller v. Florida, 482 U.S. 423

HOOT. ca: ‘innneieisatbicitat iaaee ae 15

Nichols v. United States, Certiorari to the

United States Court of Appeals for the

Sixth Circuit ,No 02-8556, (June 6, 1994)

Vil

State v. Corliss, 1998 ME 36, 706 A.2d 593.

(2000)

State v. Hodgkins, No. Docket: Oxf-02-413 (Me.

04/24/2003)

ee ssa scceeiaverscaversstesreverss 21

Thompson vy. State of Missouri, 171 U.S. 380

eas vee uevescevecesccceseys: 13,17

Weaver v. Graham, 450 U.S. 24 (1981)

Neen ee Seuss aceacateceeseceneesecseuceses 15

Vill

STATUTES

The Maine Criminal Code

Title 17-A, Part 1, Chapter 1, §1

Title 17-A, Chapter 4, §1

Title 29-A M.R.S.A. §2411

Title 15, Chapter 305-A § 2124 section 3

Title 17-A § 32

Title 17-A § 33

The United States Codes

28 U.S.C. section1257(a)

Maine Rules of Court

Rule 11

UNITED STATES CONSTITUTION

article 1, section 9

The Fourteenth Amendment

OPINIONS BELOW

This petition for a writ of certiorari in the

United States Supreme Court proceeds from the

denial for relief in a post-conviction review

action. Justice E. Allen Hunter filed the denial,

“DECISION AND ORDER” (Case Number CR -

03-017), in Superior Court in the County of

Lincoln, State of Maine, on January 23, 2006. A

copy of that decision is attached in Appendix A.

The post conviction review petition was filed by

Chisholm on September 13, 2003.

After a brief stay of proceedings pending a

motion for clarification, Chisholm applied to the

Maine Supreme Judicial Court, Sitting as the Law

Court, for a discretionary appeal of above decision

on April 21, 2006. A copy is attached in

Appendix B. On December 13, 2006 the

application was denied in the form of a one page

“ORDER DENYING CERTIFICATE OF

PROBABLE CAUSE”. The reviewing panel

mentions one of the issues raised in_ the

petitioner’s application but offers no legal

grounds for denial. The “ORDER...” is attached in

Appendix C.

JURISDICTION

The Maine Supreme Court denied discretionary

review on December 13, 2006. This Court has

jurisdiction pursuant to 28 U.S.C. section 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. Federal Constitutional Provisions

The Constitution of the United States,

article 1, section 9, prohibits the Legislature of

the United States from passing any ex post facto

law; and, in section 10, lays several restrictions on

the authority of the Legislatures of the several

states; and, among them, ‘that no state shall pass

any ex post facto law.’

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

"[NJjor shall any state deprive any

person of life, liberty, or property,

without due process of law... ."

B. State Statutory Provisions

The Maine Criminal Code provides as

follows:

17-A M.R.S.A § 1 The Maine Criminal Code, Title

17-A, Part 1, Chapter 1, § 1 provides

relevant part:

“When it is alleged that an element occurred on or

about any date prior to the effective date of the

code, the prosecution shall be governed by the

prior laws.”

and (2) that

“For purposes of this section, a crime was

committed subsequent to the effective date if all of

the elements of the crime occurred on or after that

date; a crime was not committed subsequent to the

effective date if any element thereof occurred prior

to that date, or if the evidence may reasonably be

interpreted to establish that any element may have

occurred prior to that date. [1981, c. 324,

(amd).](emphasis added).”

and (6) that

“Application to crimes outside the code

1. The provisions of Parts 1 and 3 and

chapter 7 are applicable to crimes defined

outside this code, unless the context of the

Statute defining the crime clearly requires

otherwise. [1989, c. 502, Pt. D, § 9 (amd).] “

Title 17-A Chapter 4, section |

relevant part:

“Criminal statutes drafted in the future must

conform as closely as possible to the general

principles and guidelines set out in the code. “

Title 29-A M.R.S.A. § 2411 (6)'

Subsection (6) reads as follows:

“A6. Aggravated punishment category. An

operator commits a Class C offense if the State

pleads and proves that the operator, while

operating a motor vehicle in violation of this

section:

A. In fact caused serious bodily injury as

defined in Title 17-A, section 2, subsection 23

' Title 29-A M.R.S.A. Sec. 2411 as of November 10, 2000 attached

in full APPENDIX D.

to another person or in fact caused the death of

another person; or [1999, c. 703, 'l (new).]

B. Has either a prior conviction for a Class C

crime under this section or a prior criminal

homicide conviction involving ~r resulting from

the operation of a motor vehicle while under the

influence of intoxicating liquor or drugs or with

a blood-alcohol content of 0.08% or greater.

[1999, c. 703, 'l (new).]

The sentence must include a period of

incarceration of not less than 6 months, a fine

of not less than $2,000 and a court-ordered

suspension of a driver's license for a period of 6

years. These penalties may not be suspended.

[1999, c. 703, '1 (rpr).]”

This Class C subsection, effective August 11,

2000.”

M.R.S.A. Title 15, Chapter 305-A. 15 § 2124,

section 3 (C). ”

relevant part

“C. A pending trial or any of the restraints or

impediments specified in subsection | following a

criminal judgment in this State, another state or in

a Federal Court for a crime for which proof of the

criminal judgment of this State that is challenged

constitutes an element of the subsequent crime.”

M.R.S.A. 17-A § 32. Elements of crimes

defined

7 M.R.S.A. Title 15, Chapter 305-A Post Conviction Review attached in

full APPENDIX E.

relevant part

“No person may be convicted of a crime unless

each element of the crime is proved beyond a

reasonable doubt. ‘Element of the crime’ means

the forbidden conduct; the attendant

circumstances specified in the definition of the

crime; the intention, knowledge, recklessness or

negligence as may be required; and any required

result. [1981, c. 324, § 14 (new).]Section

History:1981,.c. 324, § 14(NEW). “

M.R.S.A. 17-A § 33.Result as an element;

causation

“Unless otherwise provided, when causing

a result is an element of a crime, causation may

be found where the result would not have

occurred but for the conduct of the defendant

operating either alone or concurrently with

another cause, unless the concurrent cause was

clearly sufficient to produce the result and the

conduct of the defendant was clearly insufficient.

[1981, c. 324, § 14 (new).]”

C. State Rules of Court

MAINE Rules: Rules of Criminal Procedure

“RULE 11. PLEAS; ACCEPTANCE OF A PLEA

TO A CHARGE OF A CLASS C OR HIGHER

CRIME

(a) Pleas.

(1) In General. A defendant may plead not

guilty, not criminally responsible by reason of

insanity, guilty, or nolo contendere. A defendant

may plead both not guilty and not criminally

responsible by reason of insanity to the same

charge. The court may refuse to accept a plea of

guilty or nolo contendere.

If a defendant refuses to plead, or if the court

refuses to accept a plea of guilty or nolo

contendere, the court shall enter a plea of not

guilty.

(2) Conditional Guilty Plea. With the

approval of the court and the consent of the

attorney for the state a defendant may enter a

conditional guilty plea. A conditional guilty plea

shall be in writing. It shall specifically state any

pretrial motion and the ruling thereon to be

preserved for appellate review. If the court

approves and the attorney for the state consents to

entry of the conditional guilty plea, they shall file

a written certification that the record is adequate

for appellate review and that the case is not

appropriate for application of the harmless error

doctrine. Appellate review of any specified ruling

shall not be barred by the entry of the plea.

If the defendant prevails on appeal, the

defendant shall be allowed to withdraw the plea.

(3) Fine on Acceptance of Guilty Plea in

District Court. The District Court clerk may, at

the signed request of the defendant, accept a

guilty plea upon payment of a fine as set by the

judge in the particular case or as set by the judge

in accordance with a schedule of fines established

by the judge with the approval of the Chief Judge

for various categories of such offenses.

(b) Prerequisites to Accepting a Plea of Guilty or

Nolo Contendere to a Class C or Higher Crime. In

all proceedings in which the offense charged is

murder or a Class A, Class B, or Class C crime,

before accepting a plea of guilty or nolo

contendere, the court shall insure:

(1) That the plea is made with knowledge of the

matters set forth in subdivision (c); and

(2) That the plea is voluntary within the meaning

of subdivision (d); and

(3) That there is a factual basis for the charge, as

provided in subdivision (e); and

(4) That an unrepresented defendant has waived

the defendant's right to counsel.

Knewingly.Before accepting a plea of guilty or

nolo contendere, the court shall address the

defendant personally in open court and inform the

defendant of, and determine that “the defendant .

understands, the following:

(1) The elements of the crime charged, the

maximum (EMPHASIS ADDED)

possible sentence and any mandatory minimum

sentence; and....”

History of the Case

In 1987, on October 3 dt approximately

10:05 P.M. Robert Beale and Petitioner, Donald

D. Chisholm were operating motor vehicles on

Commercial Street (Route 1A) in Portland, Maine.

Robert Beale was northbound and _ Donald

Chisholm was southbound. Those vehicles collided

On a curve in the roadway. Robert Beale was

killed instantly. Donald Chisholm survived with

minor injuries. An investigation by the Portland

Police Department resulted in vehicular

manslaughter charges (Cum CR-87-1955) being

brought against the survivor of the collision,

Donald Chisholm. After a jury-waived trial,

Justice Paul Fritzsche found Donald Chisholm

guilty of operating under the influence and

manslaughter and sentenced him to Department of

Corrections for eight years, all but six suspended,

four years probation, a driver’s license suspension

of six years and a fine of one thousand dollars.

The conviction was appealed to the Maine

Supreme Court and affirmed.

On November 10, 2000 in Edgecomb,

Maine, the Petitioner, Donald Chisholm, the same

person convicted in CR-87-1955 above, was

arrested and charged with operating under the

influence (WISSC —CR-2001-048). This

_ indictment was brought in accordance with 29-A

M.R.S.A. § 2411(6)(B) effective in July of the

year 2000. After consultation with an Attorney of

the Maine Bar Association and after completing a

Rule 11° Hearing before Justice E. Allen Hunter,

> Sentencing hearing for defendant pleading guilty in Maine. Rule fl

rules of procedure above.

Donald Chisholm, the current pro se petitioner,

plead guilty to the November 10, 2000 OUI

charge. This Rule 11 Hearing was conducted on

January 16, 2002.

A few days prior to reporting to serve the

sentence Chisholm wrote a letter to the sentencing

Judge* venting frustration over what he saw as a

less than acceptable Rule 11 Hearing on January

16", Of 2002.

On December 24, 2002 Chisholm filed a

motion to reverse the sentence rendered at the

Rule 11 Hearing of January 16, 2002. That motion

was filed under M.R. Crim. P. 35°. On June 13,

2003 Judge E. Allen Hunter issued an “ORDER”

denying the motion under rule 35. Justice Hunter

stated in the order that “Chisholm does not raise

any valid arguments concerning Rule 11” and that

the other issues were not “valid grounds for a Rule

35 Motion”.

The LAW COURT denied an application for

a certificate of probable cause to appeal the

“ORDER” on Rule 35 on September 15'", 2003. In

so doing Supreme Judicial Court Judge Robert W.

* Appendix F. This letter relevant to both the “element of the crime” vs.

“sentence enhancement” issue per McMillan v. Pennsylvania , 477 U.S.

79 (1987) and Rule 11, Maine Rules of Court issue.

* See Appendix G . ISSUES listed in Motion 35 of December 24, 2002 ,

copy of issues page.

Clifford wrote “it is apparent that the appeal does

not raise any issue worthy of being fully heard.” °

While the Rule 35 Motion was pending in

Lincoln County, Chisholm had taken further

action in Cumberland County regarding the prior

conviction element of Wisc 01-48, Cr-87-1955. A

post conviction review action in accordance with

M.R.S.A. 305-A 3, B(2) was filed on January 13,

2003.’ Chisholm believed that a post-conviction

action under this section should be filed in the

Court and County of original jurisdiction.

However, the clerk of Cumberland County

returned the petition with instructions that it

should be filed in Lincoln County Superior Court

where the later operating under the influence

charge had been prosecuted. The petition was

promptly filed with Lincoln County as instructed.

At the time the petition for discretionary review

with the Maine Supreme Court on the denial of the

Rule 35 motion was still pending, the petition for

post- conviction review was stayed. Upon the

denial for certiorari with the Maine Supreme Court

on the Rule 35 Motion, a consolidated post

conviction action was filed in Lincoln County

Superior Court which included additional issues

for review. Process of the post-conviction review

petition began on September 13, 2003 upon the

® See Appendix H for “ORDER. DENYING CERTIFICATE OF

PROBABLE CAUSE.”RULE 35

” Sée Appendix J. “PETITION FOR POST CONVICTION REVIEW”

(with appendix “B” only)

denial from the LAW COURT of the certificate of

appeal on the Rule 35 motion. After two oral

hearings*® and the passing of almost three years,

finally, on January 12, 2006, Justice E. Allen

Hunter issued the “DECISION AND ORDER”

denying the relief requested’. Chisholm applied to

the Maine Supreme Court for a certificate of

probable cause for certiorari and was denied on

December 13, 2006'°. This current application for

certiorari to the United States Supreme Court

ensued.

STATEMENT OF PRESENT LEGAL CASE

Question Presented I.

This application for certiorari to the U.S.

Supreme Court has as a foundation, almost

entirely, the concurring opinion of Justice

Clarence Thomas in which Justice Scalia joined in

part in Apprendi v. New Jersey, 530 U.S. 466, 490

(2000).

held:

sé

other than fact of prior conviction, any fact that

increases penalty for crime beyond prescribed

statutory maximum must be submitted to jury and

* No evidentiary hearing on the post conviction review of the prior

conviction element was ever heard, although transcripts and Court

records of both Cr-87-1955 and CV-89-1271 were supplied to E. Allen

Hunter by the Cumberland County Superior Court.

* See APPENDIX A.

'° Attached as APPENDIX C.

proved beyond reasonable doubt.” (Emphasis

added)

This clear directive from the Court excludes

the fact of a prior conviction from_ the

constitutional requirement of proof beyond a

reasonable: doubt to a jury. Chisholm’s question

to the U.S. Supreme Court, based upon the

analysis of Justice Thomas, is -what constitutional

protections are afforded to a prior conviction

when that fact raises the maximum sentence.

Despite the prosecution not needing to prove the

fact of the prior conviction beyond a reasonable

doubt to a jury, is the prior conviction nonetheless

“an element of the crime” if it raises the maximum

available sentence for the current’ criminal

behavior? }

The concurring opinion in Apprendi further

states:

“ Thus, it is critical to know which facts are

elements. This question became more complicated

following the Court's decision in McMillan v.

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91

L.Ed.2d 67 (1986), which spawned a special sort

of fact known as a sentencing enhancement. See

ante, at 2356, 2360, 2365. Such a fact increases a

defendant's punishment but is not subject to the

constitutional protections to which elements are

subject.”

Chisholm began asking the question of

whether his. prior conviction for vehicular

manslaughter was an “element of the crime” or a

“sentencing enhancement” prior to and on record

at the Rule 11 Hearing of January 16, 2002 before

Judge E. Allen Hunter and to date has received no

opinion from this Judge or from The Maine

Supreme Judicial Court and none is pending.

There are no additional procedures available in the

Maine criminal process to elicit such an opinion.

These rulings below indicate that the Maine

Judicial System does not agree with Justice

Thomas and Apprendi that “Thus, it is critical to

know which facts are elements”. The Maine

Supreme Court issued only a denial of certiorari,

not any legal analysis. Justice E. Allen Hunter

who was assigned the post-conviction action by

the chief Justice of the Superior Court stated in

his DECISION AND ORDER at page 9 , “This

court is not required to engage in the ‘element’

versus -enhancement factor’ analysis put forth by

the Petitioner as Apprendi is not applicable to this

case.”'' Whether Judge Hunter believed that

Apprendi had any application to Chisholm or not,

the Maine Rules of Criminal Procedure require

that

“the court shall address the defendant

personally in open court and inform the

defendant of, and determine that “the defendant

understands, the following:

(1) The elements of the crime

charged...”

'! Judge Hunter presided over the Rule 11, Sentencing hearing, and

apparently believes that a defendant deciding whether to plead guilty to a

crime need not know whether an attached prior conviction is an element

or an enhancement factor per McMillan through Apprendi line of cases.

Justice Thomas’ goes. further in_ his

concurring opinion in Apprendi in stating:

“A long line of essentially uniform authority

addressing accusations, and stretching from the

earliest reported cases after the founding until

well into the 20th century, establishes that the

Original understanding of which facts are

elements was even broader than the rule that the

Court adopts today.

This authority establishes that a "crime"

includes every fact that is by law a basis for

imposing or increasing punishment (in contrast

with a fact that mitigates punishment). Thus, if

the legislature defines some core crime and then

provides for increasing the punishment of that

crime upon a finding of some aggravating fact--

of whatever sort, including the fact of a prior

conviction--the core crime and the aggravating

fact together constitute an aggravated crime,

just as much as grand larceny is an aggravated

form of petit larceny. The aggravating fact is an

element of the aggravated crime.“.

The most important and bottom line goal of

this application for certiorari to the U.S. Supreme

Court is to have the Court clearly establish or

deny the following principle of constitutional law:

Prior convictions that raise the penalty for a

crime beyond the prescribed statutory maximum

are elements of the crime. As elements, prior

convictions have the same _ constitutional

protection as any crime consisting of one or more

elements (except the fact of a prior conviction

need not be proven beyond a reasonable doubt to a

jury). In order to include a prior conviction

element in an indictment or information, and raise

the maximum available’ sentence, the _ prior

conviction must have occurred on or after the

effective date of the statute. defining’ the

aggravated crime.

Discussion

Chisholm has studied the progression of cases

that address the ex post facto clause of the United

States Constitution including :

Calder v. Bull, 3 U.S. 386 (1798), Kring v.

State of Missouri, 107 U.S. 221 (1883), Thompson

v. State of Missouri, 171 U.S. 380 (1898), Beazell

v. State of Ohio, 269 U.S. 167 (1925), Lindsey v.

State of Washington, 301 U.S. 397 (1937),

Dobbert v. Florida, 432 U.S. 282 (1977), Weaver

v. Graham, 450 U.S. 24 (1981), Miller v. Florida,

482 U.S. 423 (1987), Collins v. Youngblood, 497

U.S. 37 (1990), Landgraf v. USI Film Products,

__—Ss« US. ~__ ss (1994) California Dept. Of

Corrections v. Morales, __ U.S. ___ (1995).

In the context of Chisholm we are

addressing the application of a new statute (bill

no. “LD2406" ) to a case where a prior

conviction element occurred 12 years prior to the

effective date of the statute defining the

“aggravated crime” , Apprendi, supra. The

“criminal homicide conviction involving or

resulting from the operation of a motor vehicle

'? Final draft of bill in legislature attached APPENDIX J.

“

while under the influence of intoxicating liquor

is an aggravating element that had not previously

existed in Title 29-A M.R.S.A. SEC. 2411."°

Prior to the effective date of this new statute, July

of 2000, Chisholm would have been charged with

a statutory first time offense operating under the

influence as described by M.R.S.A. § 2411 (5) A

and punished within that section’s proscribed

sentence. The upper end of the sentence would

have been controlled by the next level minimum

described in section B. Of § 2411. Chisholm was

in fact initially charged with a Class D crime

under § 2411 (5) A, only to be re-indicted several

months later under the new Class C crime § 2411

(6). The statutory jail time under the Class D (5)

would have been 48 hours. The statutory jail time

under Class C crime § 2411 (6) was a minimum 6

months and a maximum § years. On the minimum

end the new statute increased the jail time by a

multiple of 90 and on the maximum end by 900.

The penalty for license suspension under the same

analysis goes from 90 days to 6 years, a multiple

of 24. The fine penalty goes from $400 to $2000,

a multiple of 5. In McMillan _ vy.

Pennsylvania,477 U.S. 79 (1986) the Court

addresses the degree of variance of sentencing

impacted by “sentencing enhancements” and

“elements of the crime”.

“We have noted a number of

differences between this case and Winship,

Mullaney, and Specht, and we find these

'3 APPENDIX D

differences controlling here. Our inability to

lay down any “bright line" test may leave the

constitutionality of statutes more like those

in Mullaney and Specht than is_ the

Pennsylvania statute to depend on

differences of degree, but the law is full of

situations in which differences of degree

produce different results.”

The degree changes in Chisholm from the

Class D charge to the new Class C amendment of

July 2000 are considerable.

Until McMillan there has been no doubt

that prior convictions that elevate sentences have

no protection from the ex post facto clause or

double jeopardy. The case law supports the long

held opinion of the Court that sentences “attach”

to the current criminal behavior and not to the

aggravating prior conviction. However, since

McMillan, the standard has been established that

prior convictions that raise the statutory

maximum sentence have a_= more critical

relationship to the degree of punishment and

therefore are elements of the crime and not simply

aggravating sentencing factors. What

Constitutional protections exists for these critical

elements? The early ex post facto cases, Calder v.

Bull, 3 U.S. 386 (1798), Kring v. State of

Missouri, 107 U.S. 221 (1883), Thompson v.

State of Missouri, 171 U.S. 380 (1898) outline the

criteria for ex post facto violations in Federal and

State lawmaking. Chisholm admits that in a strict

interpretation of those cases Maine Law, § 241]

(6), does not make illegal behavior that was

previously legal and punish him for the fact he

did it. However, the element of the crime vs.

enhancement factor cases including; McMillan v.

Pennsylvania,477 U.S. 79 (1986), Nichols v.

United States, Certiorari to the United States

Court of Appeals for the Sixth Circuit ,No 02-

8556, (June 6, 1994), Almendarez-Torres v.

United States, 523 U.S. 224 (1998), Jones v.

United States, 526 U.S. 227 (1999), Apprendi v.

New Jersey No. 99-478 (2000) and Supreme Court

of United States and Cunningham v. California,

No. 05-6551 have set the standard for

determining when aggravating sentencing factors

are “elements” and when they are “sentencing

factors”. The question has become does the

aggravating factor raise the maximum sentence

allowed by statute for the current criminal

behavior. The main issue in these cases was

whether the aggravating factor could be found as

a fact by a Judge in the sentencing process or was

required to be proven beyond a reasonable doubt

by a jury. The latest case, Cunningham, has once

again supported the’ earlier rulings that

aggravating factors that raise the maximum

sentence must be found to be facts by a jury

beyond a_ reasonable doubt (except prior

convictions). Chisholm contends that the United

States Supreme Court has not excepted prior

convictions that raise the maximum sentence from

being classified as “elements of the crime” but

rather have excepted prior convictions from the

requirement of proof beyond a reasonable doubt

by a jury. It is logical that the Supreme Court

would not require the jury finding of fact again,

as these prior convictions have theoretically

already been admitted to or have already been

proven beyond a reasonable doubt in previous

proceedings. Chisholm does not view the Maine

legislative bill Ld2406 '* or the statute § 2411

(é6y'", in and of themselves, as violations of the ex

post facto clause of the Constitution. Any citizen

charged with “criminal homicide involving or

resulting from the operation of a motor vehicle

while under the influence of intoxicating liquor”

after the effective date of M.R.S.A § 2411 (6)

faces possible future consequences of the new

statute in the event of an operating under the

influence charge. That liability or consequence

would have been in place after July of 2000 in

Maine. That consequence and liability was not in

place when Chisholm was convicted of criminal

homicide involving or resulting from the

operation of a motor vehicle while under the

influence of intoxicating liquor in 1988. It is,

therefore, Chisholm’s contention that’ the

consequences or punishment for his 1988

conviction became more onerous when Maine

charged him under the July of 2000 statute

M.R.S.A § 2411 (6) and that the = statutory

sentence relates much more closely to the prior

conviction element than it does to the current

criminal behavior element. Chisholm contends he

is being punished for both elements of the crime

and the consequences of his prior conviction have

'SAPPENDIX J

'5 APPENDIX D

been made more onerous by the application of the

new statute M.R.S.A § 2411 (6) to his case.

Once again referring to McMillan the question of

the degree of the impact of the aggravating

sentencing factor becomes “crucial” within the

definition of the word in Justice Thomas’s

concurring opinion in Apprendi v. New Jersey,

530 U.S. 466, 490 . The degree or standard that

has been set by the U.S. Supreme Court in the

element of the crime cases is the fact of whether

or not the aggravating sentencing factor has

raised the maximum available sentence. In the

process of Chisholm in the Maine Superior Courts

(with Judge E. Allen Hunter presiding) the

question of whether the aggravating prior

conviction was an element of the crime or an

enhancement factor has been afforded no

relevance and the Judge has consistently refused

to rule on the question’®. This refusal, prior to

sentencing and during the post conviction review

process,- has been supported by the Maine

Supreme Court in their refusal to issue a

certificate of probable cause.

Without any ruling in Chisholm there are

nonetheless rulings in Maine common law. “When

the State charges a crime enhanced by prior

'© Chisholm filed a pro se ..Motion for Dismissal. on the grounds of the

element of the crime definition as contained in Maine Statutes and

Maine Case Law. Despite Chisholm’s insistence prior to and during the

Rule 11 hearing (guilty plea hearing in Maine) that Judge Hunter issue a

ruling on the motion, the Judge outright refused to do so. Motion

attached APPENDIX K.(WITHOUT APPENDIX)

convictions of specified crimes, as it did in this

case by charging Corliss with Class C OUI in

violation of 29-A M.R.S.A. § 2411, the prior

convictions are an essential element of the crime

charged.” See Landry v. State, 575 A.2d 315,

316-17 (Me. 1990). “An indictment must allege

every element of the offense charged.”

State v. Corliss, 1998 ME 36, 706 A.2d 593.

(2000) . These cases make no distinction between

prior convictions that raise the maximum

sentence (classification) and those that enhance a

sentence within the same sentencing

classification, nevertheless using the term

element freely. The United States Supreme Court

cases McMillan through Cunningham require that

the aggravating factor raise the maximum

sentence in order to meet the definition of

“element” verses a “sentencing factor.” Maine

common law does recognize the distinction citing

Apprendi in State v. Hodgkins, No. Docket: Oxf-

02-413 (Me. 04/24/2003) The Court stated that

"facts that expose a defendant to a punishment

greater than that otherwise legally prescribed

[are] by definition 'elements' of a separate legal

offense." Hodkins does not involve a prior

conviction as an aggravating factor and Chisholm

is not aware of any other case in Maine common

law that addresses prior convictions as elements

as defined by McMil/an through Cunningham and

specifically addressed by United States Supreme

Court Justice Thomas in his concurring opinion in

Apprendi.

Petitioner Chisholm prays that the United

States Supreme Court will grant certiorari on this

issue of prior convictions as elements of the

crime and clarify what Constitutional Protections

apply to the application of new Maine Statutes

that attach past convictions as elements of new

“separate legal offenses”, Apprendi.

Question Presented II

The secondary issue listed in_ this

application for certiorari involves due process and

provides support for Chisholm’s position that

prior convictions that raise maximum sentences

Should be afforded ex post facto protection.

Chisholm questions the dedication and/or ability

of the State of Maine’s Judicial Branch to follow

the letter of the law in the post conviction review

protections provided in the Maine Criminal

Statutes. This case is somewhat of a study of the

degree to which a prior conviction element of a

crime will be afforded a review for accuracy and

legitimacy. Chisholm believes that despite

meeting the prerequisites for a post conviction

review of the prior conviction, no credible effort

was made by the Maine Judicial Branch to conduct

such a review. Perhaps much of this proposed state

of affairs involves the fiscal budget of the

judiciary and not bad intent.

Discussion

In the overall discussion of the use of a

prior conviction to increase the maximum

statutory sentence, Chisholm believes there is an

issue that needs to be addressed. The accuracy of

convictions. Maine Law provides a protection and

a method of reviewing the accuracy of a prior

conviction when it is to be used as an element of a

“subsequent offense” in M.R.S.A._ Title 15,

Chapter 305-A. 15 § 2124, section 3 (C).

relevant part

“C. A pending trial or any of the restraints or

impediments specified in subsection 1

following a criminal judgment in this State,

another state or-in a Federal Court for a

crime for which proof of the criminal

judgment of this State that is challenged

constitutes an element of the subsequent

crime.”

Chisholm’s Post Conviction Review Petition

CR- 03-017, the denial of which resulted in this

petition for certiorari to the United States

Supreme Court, sought a review of the prior

conviction element based upon factual finding

from a subsequent civil trial (CV-89-1271). This

portion of the post conviction review petition is

attached as APPENDIX I. Chisholm and the

prosecutor for the State of Maine, District

Attorney Geoffrey Rushlau, appeared for oral

hearing on January 20, 2005 as stated by Judge E.

Allen Hunter in his ORDER AND DECISION of

January 23, 2006.'’ At this hearing a clerk for the

Superior Court of Penobscot County physically

placed the records from CR-87-1955 (criminal

homicide case) and CV-89-1271 (civil wrongful

death suit case) on the Judge’s bench. Judge

Hunter referred to these omnibus stacks of paper

as this happened and made a comment to the effect

that there was a _ considerable amount of

information to study in order to consider the

review of the prior conviction aspect of the case.

Judge Hunter further had requested an opinion and

affidavit from Chisholm’s Attorney in those cases

” swearing to his knowledge of the grounds for

post conviction review. That affidavit is part of

the record. At the hearing of January 20, 2005

there was no argument or rebuttal on the prior

conviction element of the current offense as to the

legitimacy of the guilty verdict in the jury waived

criminal trial of 1987, CR-87-1955. It was agreed

that an evidentiary hearing concerning the

conviction in CR-87-1955 and the contributory

negligence finding'® in CV-89-1271 would only be

necessary if the other legal issues of the post

conviction review did not prevail in Chisholm’s.

favor. Judge E. Allen Hunter’s DECISION AND

ORDER provided for no further hearing on this

aspect of the review proceeding. In Chisholm’s

MEMORANDUM IN SUPPORT OF

'’ Transcripts of this hearing were made part of the record \o the Maine

Supreme Judicial Court as part of the application for certificate of

probable cause to appeal in this case.

'® This affidavit is attached as APPENDIX L.

'? Jury finding, last page of APPENDIX I.

CERTIFICATE OF PROBABLE CAUSE TO

APPEAL the request for further hearing on the

legitimacy of the conviction, CR-87-1955 was

ignored by way of the simple unexplained denial

and the statement “Based on our review, we

determine that no further hearing or other action is

necessary to a fair disposition of the matter.”

The current petitioner would like to believe

that the Maine Supreme Court jurists reviewed the

transcripts of both CR-87-1955 and CV-89-1271,

and the verdicts in both as they apply to

“M.R.S.A.17-A § 33. Result as an

element; causation

Unless otherwise provided, when

causing a result is an element of a

crime, causation may be found where

the result would not have occurred but

for the conduct of the defendant

operating either alone or concurrently

with another cause, unless’ the

concurrent cause was clearly

sufficient to produce the result and

the conduct of the defendant was

clearly insufficient. [1981, c. 324, §

14 (new).]” |

and concluded that Chisholm’s conduct at the time

of the collision on October 10, 1987 was clearly

sufficient to have caused the result- the death of

another human being. Chisholm sincerely believes

that no such review ever happened. Even if it did

Chisholm was never given the opportunity to call

witnesses, including jurist in CV-89-1271, to

establish the fact that the then defendant’s conduct

was insufficient to have caused the death of the

other driver, Robert Beale.

For these reasons Chisholm does not believe he

was afforded due process from the Court below in

the post conviction review action for CR-2001-

048, CR-03-017. Chisholm would extend the

claim to the Maine Supreme Court Ruling,

“ORDER DENYING CERTIFICATE OF

PROBABLE CAUSE”.

REASONS FOR GRANTING THE PETITION

I believe the Fourteenth Amendment of the

United States Constitution provides the most

fundamental reason that the petition should be

granted. When I was first charged under the new

Maine Statute Title 29-A M.R.S.A. § 2411 (6) 1

was unaware that there was such a law. I had for

years been pursuing appeals. of the prior

conviction element without success and had served

a number of years in prison for the crime. In 1993

the Maine Supreme Judicial reversed a summary

judgment in the associated wrongful death suit and

a retrial of the identical factual base of the

causation issue in CR-87-1955 was conducted. |

felt that I received some vindication for the degree

of culpability in the death of Robert Beale when

the jury in the civil trial, CV-89-1271, found

contributory negligence. The years of guilt,

frustration and stigma associated with the degree

of negligence of a manslaughter conviction had

been burdensome. When I let my guard down in

the year 2000 and admittedly operated a motor

vehicle while under the influence of alcohol, the

failures and pain of the past came streaming back.

It was devastating. It was devastating prior to the

State of Maine raising the classification of the

crime to a Class C offense per M.R.S.A. § 2411

(6) . Now I had to answer again for a conviction I

have never come to accept as the truth. My heart

and my soul know that the burden and punishment

for the conviction in 1988 has been made greatly

more onerous as a result of the application of

M.R.S.A. § 2411 (6). Had the sentence for the

current operating under the influence charge been

at the top of the classification for that crime |

would have no disagreement with suffering that

sentence. I believe the ex post facto clause of the

United States Constitution has the purpose of

preventing citizens from being punished again for

conduct, and even disastrous results of conduct,

for which they have already. been punished. Can it

honestly be stated that the punishment prescribed

in M.R.S.A. § 2411 (6) attaches only to the

current illegal conduct and not’ the _ prior

conviction?

I believe the standard for defining elements of

a crime as found since McMillan v. Pennsylvania ,

477 U.S. 79 (1987) and through Cunningham vy.

California, No. 05-6551 should and does apply to

prior convictions. I believe if the United States

Supreme Court interprets the Constitution in a way

that excludes a prior conviction element of a crime

from ex post facto protection- when that element

occurred prior to the enactment of a State Statute

that defines the new aggravated crime - then it

may want to use this case to establish that finding

of law. I can not ascertain from the case law that

it has been clearly ruled that prior convictions that

raise the maximum sentence are excluded as

elements of a crime and that they are therefore

exempt from ex post facto protection. 1 can

ascertain from the case law that prior convictions

that do not raise the maximum sentence are in fact

“sentence enhancements” and not protected by the

ex post facto clause.

It 1s becoming prevalent across the United

States that recidivist law is attaching greater

punishment for repeat offenders. There is certainly

justification from a_ deterrence’ perspective.

However, I am a witness to the truth that not all

trial processes are of the quality that result in a

just verdict. Without de facto processes by which

a defendant can challenge the accuracy of a prior

conviction their attachment as an-element of a new

offense is dangerous to ordered liberty. It may be

beyond the resources of the States of the United

States to provide adequate review of these prior

offenses. | believe that to be the case in Chisholm.

There is undoubtedly a significant percentage of

the current prison population that would qualify

for release if the attachment of some prior

conviction is ruled a violation of the ex post facto

clause because the prior conviction preceded the

statute that defined the aggravated crime. Some of

those undoubtedly would deserve to be released.

I pray that the concurring opinion in Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000) will be

revisited by the jurists of the United States

Supreme Court and that all elements of a crime

charged, including prior convictions, will be

granted ex post facto protection.

CONCLUSION

This Court should for the above reasons grant

this Petition for a Writ of Certiorari.

DATED: March 6, 2007

Respectfully submitted

Donald D. Chisholm

Pro Se Petitioner

App. |

STATE OF MAINE SUPERIOR COURT

LINCOLN, ss. CRIMINAL ACTION

DOCKET NO. CR-03-017

DONALD CHISHOLM, )

Petitioner )

)

v. ) DECISION AND ORDER

)

STATE OF MAINE, )

Respondent )

Pending before this court is the Petitioner’s

petition for post-conviction review and the States

motion to dismiss. On January 20,2005, the court

conducted a testimonial hearing in connection

with this motion. The State was represented by

District Attorney Geoffrey Rushlau. The Petitioner

who had not requested court appointed counsel

appeared pro se and represented himself.

BACKGROUND

Pursuant to 15 M.R.S.A. § 2121-2132

(Supp.2004), the Petitioner, Donald Chisholm, has

filed a petition for post-conviction review seeking

to have his convictions for Operating Under the

Influence (Class C) (Count 1) and Operating After

Suspension (Class E) (Count 2) (Lincoin County

Docket No. Cr-01-048) set aside. Pursuant to the

provisions of 29-A M.R.S.A. § 2411(6), the State

charged the Petitioner with the offense of

operating under the Influence as a Class C felony.

APPENDIX A

App. 2

This was predicated upon the Defendant’s prior

conviction for a criminal homicide arising out of

the operation of a motor vehicle while under the

influence of alcohol or intoxicants or with an

excessive blood

alcohol level.’ On July 27, 2001, the Petitioner

filed a Motion to Suppress, which the court denied

on November 6, 2001.2 On January 16, 2002, the

Petitioner pleaded guilty to both counts. On count

1, the court sentenced the Petitioner to the

Department of Corrections for a term of three

years. with all but ten months suspended and

placed him on probation for a period of one year

and six months. The court also fined the Petitioner

$2000 plus the applicable fees and surcharges. The

court further sentenced the Petitioner to a

concurrent six months term on Count 2.

On December 26, 2002, the Petitioner filed

a Rule 35 Motion, which the court later denied.°

' The Petitioner has a prior conviction for Manslaughter (17-A M.R.S.A.

§ 203(1) in Cumberland County CR-87-1955. Because of this prior

conviction, pursuant to 29-A M.R.S.A § 2411(6), what would otherwise

have been a Class D offense is enhanced to a Class C offense.

? The Petitioner also filed a motion for a Bill of Particulars and a motion

to dismiss . the Petitioner's plea rendered these motions moot.

* After sentencing, the Petitioner filed two letters with the court. The

court interpreted the letters to be a rule 35 Motion and on February

28,2002, the court denied the Petitioner's Rule 35 motions. The

Petitioner then contacted the court and indicated that he did not intend his

letters to constitute a Rule 35 motion, thus, on April 18,2002, the court

rescinded the Order denying the Petitioner’s motions.

APPENDIX A

App. 3

The Petitioner filed this petition for post

conviction review on January 16, 2003. After

review of the pleadings and the record, the court

determined there was no need for an evidentiary

hearing on the petition as the remaining issues

were issues Of law. The Court’s present decision

renders moot the State’s motion to dismiss.

DISCUSSION

The Petitioner alleged four grounds for

post-conviction review. In his first ground, the

Petitioner alleged that the police fabricated

evidence. This is not a valid ground for post-

conviction review. In his second ground, the

Petitioner alleged that his prior conviction for

Operating under the Influence and Manslaughter

occurred outside the ten year sentence

enhancement period under 17-A M.R.S.A § 9-A

(Supp 2004). Read with

the requisite liberality, this ground alleged an

illegal or unconstitutional sentence, which was a

valid ground for post-conviction review. 15

M.R.S.A. § 2125; Smith v. State, 479 A. 2d.1309,

1311 (Me. 1984). In his third ground, the

Petitioner alleged that 29-A M.R.S.A. § 2411(6),

amounted to an ex post facto law because it

changed the sentencing enhancement period after

his initial Operating Under the Influence and

Manslaughter convictions. Read with the requisite

liberality, this ground alleged an illegal or

unconstitutional sentence which was a_ valid

ground for post-conviction review. Id. In his final

APPENDIX A

App. 4

ground, the Petitioner alleged that the “Superior

Court system” did not allow him to argue the

merits of his Motion to Dismiss and further that

the “system” coerced his guilty plea. Read with

requisite liberality, this ground alleged ineffective

assistance of counsel, which was a valid ground

for post conviction review. State v. Huntley, 676

A. 2d 501.503 (Me. 1996).

[. Was the Court’s sentence illegal because

it was enhanced by a conviction that fell

outside the ten-year period provided in

17-A M.R.S.A. § 9-A?*

The Petitioner argues that the court illegally

enhanced his sentence for Operating Under the

Influence, because of a later enacted statute, to

wit: 17-A M.R.S.A. § 9-A(3). The statute became

effective on January 31, 2003, approximately two

years after the Petitioner was charged with

Operating Under the Influence (Class C). The

statute establishes a 10 year “look back”

limitation period for utilization of prior

convictions to enhance a sentence, except as

otherwise provided by law. The Petitioner argues

that the 2003. statute should be = applied

retroactively to his case pursuant to Teague v.

Lane, 489 U.S. 288 (1989). In this court’s opinion,

the Defendant’s reliance on Teague to establish

* While the Petitioner is no longer incarcerated pursuant to the 2001 OUI

conviction, the Petitioner nonetheless fulfills the direct impediment

requirement of 15 M.R.S.A. § 2124(1) (E) (Supp. 2004), as there is an

outstanding fine.

APPENDIX A

App. 5

retroactive application of the statute is misplaced.

Teague held that newly declared rules of criminal

procedure that are of constitutional origin do not

apply to cases where the defendant’s conviction

became final and where the case is before the

court on collateral review, (such as in a post

conviction proceeding), except in two

circumstances that are discussed infra. Those

circumstances are limited to those new rules that

“place certain kinds of primary, private individual]

conduct beyond the power of the criminal law-

making authority to proscribe” and to those new

rules that amount to “watershed declarations that

are “implicit in the concept of ordered liberty.”

Teague at 307. Aside from Teague’s observation

that “retroactivity” is a threshold consideration,

this court fails to see how Teague supports the

Petitioner's claim that § 9-A_ should be

retroactively applied to this case. The Petitioner

argues that Teague should apply to new /egis/ative

rules of criminal procedure as well as_ to

adjudicated rules of criminal procedure. He points

to a number of cases that have addressed the

retroactivity principle and quotes from Teague as

follows:

“selective application of new rules violates

the principle of treating similarly situated

defendants the same, we refuse to continue

to tolerate the inequity that resulted from

not applying the new rules retroactively to

defendants whose cases had not yet become

final.” Teague at 304.

APPENDIX A

App. 6

He quotes again from Teague at 304, 305:

“a new rule for the conduct of criminal

prosecutions is to be applied retroactively to

all cases, state or federal, pending on direct

review or not yet final, with no exceptions

for cases in which the new rule constitutes a_

clear break with the past.”

He then asserts that his case 1s on direct review in

this proceeding. It is not. This is a post conviction

proceeding, it is not an appeal affording direct

review of the underlying criminal judgment. The

Petitioner relies on Teague’s general discussion of

retroactivity

principles first expressed by Justice Harlan and

later incorporated into Teague’s majority opinion

by Justice O. Connor. The passages quoted are

well established legal principles, however, they

are part of the discussion of retroactivity in cases

that are not yet final, i.e. where the appellant’s

right of appeal has not yet exhausted. By statutory

definition, a post conviction proceeding is a

proceeding that affords collateral review, not

direct review, of convictions that have become

final and where all other means of review have

been exhausted. See 15 M.R.S.A. § 2126. In this

case, the Petitioner pled guilty on January 16,

2002 and because there was no possible decisional

error he had no right of appeal except to raise

jurisdictional - challenges or — constitutional

questions pertaining to excessive, cruel or unusual

APPENDIX A

App. 7

punishments.” Accordingly his conviction became

final twenty-one days later on February 6, 2002.

_However, even if Teague were to be applied

to the 2003 version of section 9-A (3), its ten-year

limitation would still not be applied retroactively.

Teague establishes two exceptions to the rule that

new rules of criminal procedure will not be

applied retroactively to cases on collateral review

that have become final before the new rules have

come into effect.

First, “a new rule should be = applied

retroactively if it places ‘certain kinds of primary,

private individual conduct beyond the power of

the criminal law-making authority to proscribe.’ “

Teague at 489 U.S. at 311 (quoting Mackey v.

United States, 401 U.S. 667, 692 (1971). This

exception does not apply to this case, as the

Statute merely limited the time when a prior

conviction could enhance a penalty for an OUI, it

does not legalize manslaughter.

Second, a new rule should be applied

retroactively if it significantly increases the

accuracy of fact-finding procedures or if the new

rule is “implicit in the concept of ordered liberty.”

Id. at 312. The new ten-year statute can hardly be

said to increase the accuracy of any proceeding.

Its effect is to essentially impose a statute of

limitations on the use of prior convictions, not to

increase their accuracy. The verification of a prior

conviction is easily accomplished with great

accuracy. As to whether applying the new statute

* See State v. Huntley, 676 A. 2d 501 (Me. 1996)

APPENDIX A

App. 8

implicit in the concept of ordered liberty, the

Petitioner has made no such argument and this

court finds that the statute has more to do with

judicial economy and convenience than it does

with the concept ordered liberty. Section 9-A(3)

should not be applied retroactively.

Finally, the Petitioner ignores the exception

set forth in §9-A. The plain language of the

Statute states, “except as otherwise provided by

law”. This provision clearly allows the Legislature

to provide a different limitation period or even no

limitation period for prior criminal convictions

that enhance sentences. This is exactly what the

legislature did in 29-A M.R.S.A. § 2411 (6). There

is simply no limitation on the age of the prior

conviction for an alcohol or drug related motor

vehicle homicide; any such prior conviction,

regardless of age, has an enhancing effect. The

Petitioner has not demonstrated any constitutional

infirmity in such legislation.

Ii. Was the court’s sentence illegal because it

violated constitutional ex post facto

prohibitions?

29-A M.R.S.A. §2411(6) was effective until

July 1, 2004 and was used to enhance the

Petitioner’s sentence for Operating under the

Influence. It stated that the

operator of a motor vehicle commits a Class C

crime if the State pleads and proves that the

operator had a “prior criminal homicide conviction

APPENDIX A

App. 9

involving or resulting from the operation of a

motor vehicle while under the influence of

intoxicating liquor or drugs or with a _ blood

alcohol content of 0.08% or greater.”

The Petitioner argues that this. statute

violates both the ex post facto prohibitions

pursuant to U.S. Const. Art. I § 10 and the recent

U.S. Supreme Court ruling in Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000).

A. Ex Post Facto

The Petitioner argues that “[a]pplying a new

Statute to a crime that is defined by behavior that

occurred prior to the effective date of a statute

violates ex post facto laws.”

To Begin, § 2411(6) does not define the crime of

Operating Under the Influence, it merely enhances

the possible range of penalties by re-classifying

the crime from Class D to Class C. However, more

importantly, the application of section 2411(6)

was not in violation of ex post facto prohibitions.

The U.S. Supreme Court in Stogner v.

California, 509 U.S. 607, 612 (2003), stated that

Justice Chase’s categorization of ex post facto

laws in Calder _v. Bull, 3 Dall. 386, 390-391

(1798), has been recognized by the Court as

“providing an authoritative account of the scope

of the Ex Post Facto Clause.” Id. at 611. Justice

Chase wrote that there are four categories of ex

post facto laws:

Ist. Every law that makes an action done

before the passing of the law, and which

APPENDIX A

App. 10

was innocent when done, criminal; and

punishes such action. 2d. Every law that

aggravates a crime, or makes it greater than

it was, when committed. 3d. Every law that

changes the punishment, and inflicts

;

a greater punishment, than the law annexed

to the crime, when committed. 4th. Every

law that alters the legal rules of evidence,

and receives less, or different, testimony,

than the law required at the time of the

commission of the offence, in order to

convict the offender.

Calder, 3 Dall. At 390.

First, section 2411(6) did not make the

Petitioner’ s previous Manslaughter conviction

criminal. Second, section 2411(6) did _ not

aggravate the prior conviction or make it greater

than it was. Section 2411(6) did not enhance a

previous crime, it merely enhanced the current

crime because of a prior conviction. If this court

were to adopt the proposition that a conviction is

“aggravated” for the purposes of the Ex Post Facto

Clause when it can merely be used to enhance a

penalty for a later crime, then criminal histories

could rarely be used during any sentencing. Such

an interpretation of the U.S. Constitution would

yield absurd far-reaching results. Third, section

2411(6) changed the punishment for a current

OUI, it did not reach back and alter the penalty for

the Manslaughter conviction. Finally, the fourth

requirement is simply not applicable to this case.

APPENDIX A

App. 11

Section 2411(6) did not violate ex post facto

prohibitions.

B. Apprendi

The Petitioner also argues that the Supreme

Court’s decision in Apprendi and the Law Court’s

later adoption of Apprendi in State v. Hodgkins,

2003 ME 57; 822 A.2d 1187, renders his sentence

illegal. Apprendi ruled that “/ojther than the fact

of a prior conviction, any fact that increases the

penalty for a crime beyond the _ prescribed

statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490 (emphasis added).

Here, the fact decided by the court was a

prior conviction and, thus, falls within the express

exception laid out in Apprendi. It was not

improper for the Petitioner’s prior conviction to

have been determined by the court. This court is

not required to engage in the ‘‘element’’ versus

“enhancement factor’’ analysis put forth by the

Petitioner as Apprendi is not applicable to this

case.

iif. Did the Petitioner receive ineffective

assistance of counsel because his attorney failed

to challenge, by post-conviction review, his 1989

conviction for Manslaughter and OUI.

The Petitioner was also the defendant in a

wrongful death suit in Cumberland County in

APPENDIX A

App. 12

Docket No. CV-89-1271, arising out of the same

circumstances underlying his 1989 Manslaughter

conviction. The civil jury issued a finding of fact

that Robert Beale, the victim in the Manslaughter

charge, was comparatively negligent and that his

negligence was also a proximate cause of the

accident. The Petitioner claims that his former

attorney was ineffective when he failed to

challenge, by way of post-conviction review, his

1988 Manslaughter conviction based on this new

finding.

However, post-conviction review iS a

method of review of legality of post-sentencing

proceedings. 15 M.R.S.A. § 2121(2) (Supp. 2004).

The Law Court in McEachern v. State, 456 A.2d

886 (Me. 1983), found that an allegation of

ineffective assistance of counsel in a previous

post-conviction review proceeding deprived the

court of jurisdiction because a previous post-

conviction review proceeding is not a “post

sentencing proceeding.” Id at 890. If an

allegation of ineffective assistance of counsel in a

post-conviction review proceeding is not within

the court’s jurisdiction, surely an

allegation of ineffective assistance of counsel in

an alleged failure to pursue such a petition is also

beyond the court’s jurisdiction.

IV. Did the Petitioner receive ineffective

assistance of counsel because his second

attorney failed to pursue his motion to

dismiss?

APPENDIX A

App. 13

Our courts have long recognized the crucial

role that defense counsel play in ensuring that

fairness and justice prevail within our criminal

justice system and that the constitutional right to

counsel means the right to “the effective

assistance of counsel”. (See LeFerriere v. State of

Maine, 1997 ME 169, 697 A.2d 1301). Maine law

has developed the following two-part standard by

which courts determine whether a person has been

afforded or denied his constitutional guarantee of

counsel in a case where that person has previously

entered a guilty plea. In Aldus v. State of Maine

(2000 ME 47, 748 A 2d. 463), the Law Court

declared that a person who sought to avoid his

criminal conviction based on a claim of

ineffective assistance of counsel and who had

previously plead guilty had the burden of proving

each of the following:

1. That the performance of the Defendant’ s

attorney fell below that of an ordinary

fallible attorney and

2. That there is a reasonable probability

that, but for [his] attorney’s error, the

defendant would not have entered a guilty

plea and would have insisted on going to

trial. Id 413

These two bases have come to be known as the

“performance” prong and the “prejudice” prong.

Both must be proven in order to prevail on a

APPENDIX A

App. 14

petition for post-conviction review premised on

ineffective assistance of counsel.

The Law Court also noted,

r our inquiry is whether the _ plea

proceeding produced a just result which is

the “knowing and voluntary entry of a guilty

plea by a guilty party.” Thus, in making the

determination of whether counsel was

ineffective, we and the trial courts must be

guided by the overall justness and fairness

of the proceeding. Id 4/5

The Petitioner also argues that his former

attorney was ineffective because he failed to

pursue his two motions to dismiss. The first

motion was filed by Attorney William Maddox and

argued that section 2411(6) was an ex post facto

~taw. As noted above, such an argument is without

merit and would nave failed. Therefore, the

Petitioner was not prejudiced by any failure on his

former Attorney’s part to pursue this motion.

The Petitioner also filed a second motion to

dismiss pro se. In this motion, he argued that 17-A

M.R.S.A. § 1 (2000) required that all elements of

a crime must occur prior to the effective date of

any statute under the Maine Criminal Code. As the

Petitioner’s Manslaughter conviction occurred

before § 2411(6) was effective, the Petitioner

argued that it’s application to the 2001 OUI

conviction violated 17-A M.R.S.A § 1. However,

APPENDIX A

App. 15

§ 1 merely states that crimes occurring before the

enactment of the Maine Criminal Code in 1976

were to be governed by the prior law and vice-

versa. It has no implication here. In the court’s

opinion, the Petitioner’s second pro se motion to

dismiss would have failed and accordingly he was

not prejudiced by any alleged failure by his former

attorney in pursuing it.

CONCLUSION

Accordingly, the Petitioner’s request for relief

in his petition for post-conviction review 1s

DENIED. The State’s Motion to Dismiss the

petition is moot.

Dated: January 12,2006

ia) cc

E. Allen Hunter

Justice, Superior Court

APPENDIX A

App. 16

STATE OF MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT

Docket No. Kno-06-213

Donald D. Chisholm, )

Petitioner )

) MEMORANDUM IN

v. ) SUPPORT OF CERTIFICATE

) OF PROBABLE CAUSE TO

STATE OF MAINE ) APPEAL

Respondent _)

NOW COMES Petitioner, Pursuant to M.R. App. P

19, and prays that this Honorable Court will grant a

certificate of probable cause to appeal in consideration of the

facts and law below.

BRIEF HISTORY OF THE CASE

In 1987, on October 3 at approximately 10:05 P.M. a

Robert Beale and Petitioner, Donald D. Chisholm were

operating motor vehicles on Commercial Street (Route 1A)

in Portland, Maine. Robert Beale was northbound and

Donald Chisholm was southbound. Those vehicles collided

on a curve in the roadway in vicinity of the Million Dollar

Bridge. Robert Beale was killed instantly. Donald Chisholm

survived with minor injuries. An investigation by the

Portland Police Department resulted in vehicular

manslaughter charges (Cum CR-87-1955) being brought

against the survivor of the collision, Donald Chisholm. After

a jury-waived trial Justice Paul Fritzsche found Donald

Chisholm guilty of operating under the influence and

APPENDIX B

App. 17

manslaughter and sentenced him to Department of

Corrections for eight years, all but six suspended, four years

probation, a driver’s license suspension of six years and a

fine of one thousand dollars. The conviction was appealed to

the Maine Supreme Court and affirmed.

On November 10, 2000 in Edgecomb, Maine the

Petitioner, Donald Chisholm, the same person convicted in

CR-87-1955 above, was arrested and charged with operating

under the influence (WISSC CR-2001-048). This indictment

was brought in accordance with 29-A M.RS.A. §

2411(6)(B) effective in July of the year 2000. After

consultation with an Attorney of the Maine Bar Association

and after completing a Rule 11 Hearing before Justice E.

Allen Hunter, Donald Chisholm, the current pro se

petitioner, plead guilty to the November 10, 2000 OUI

charge. This Rule 11 Hearing was conducted on January 16,

2002.

1 was granted a stay of execution of sentence’ until

February 18, 2002 and in that period did some independent

research into the nature of the charges to which I had plead

guilty. The reason for the research was that I was still

unsatisfied with the explanation from legal counsel as to the

exact nature of the charge to which I had plead guilty.” That

research resulted in my writing a letter to the sentencing

Judge’ venting my frustration over what I saw as a less than

acceptable Rule 11 Hearing on January 16", Of 2002. |

‘3 ycars Department of Corrections, ail but 8 months suspended, 6 years

license suspension and $2000 fine.

? There will be further discussion concerning a then pending Motion to

Dismiss that had been filed pro se and counsel’s advice as to the

definition of the prior conviction factor and the legal implications of that

definition.

> Appendix item A (this document)

APPENDIX B

App. 18

nevertheless reported to the Department of Corrections as

ordered.

On December 24, 2002 I filed a motion to reverse the

sentence rendered at the Rule 11 Hearing of January 16,

2002. That motion was filed under M.R. Crim. P. 35.* On

June 13, 2003 Judge E. Allen Hunter issued an “ORDER”

denying the motion under rule 35. Justice Hunter stated in

_ the order that “Chisholm does not raise any valid arguments

concerning Rule 11” and that the other issues were “not valid

grounds for a Rule 35 Motion.”

The LAW COURT denied an application for a

certificate of probable cause to appeal the “ORDER” on Rule

35 on September 15", 2003. In so doing the Judge, Robert

W. Clifford, wrote: “it is apparent that the appeal does not

raise any issue worthy of being fully heard”? Despite this

statement the ORDER DENYING CERTIFICATE _ OF

PROBABLE CAUSE, in the third paragraph, opts to list

what was proposed to be an issue raised regarding an ex post

facto argument. I had never proposed that 29-A M.R.S.A.

§2411 (6) (B) “is an unlawful ex post facto law” as stated in

that document from Judge Clifford. A letter addressing this

misrepresentation was mailed to Judge Clifford on

September 30, 2003.°

While the Rule 35 Motion was pending in Lincoln

County | had taken further action in Cumberland County

regarding the prior conviction elenient of Wisc 01-48, Cr-87-

1955. I had filed a post conviction review action in

accordance with M.R.S.A. 305-A 3, B(2) on January 13,

* See Appendix Item B (this document). ISSUES listed in Motion 35 of

December 24, 2002, copy of issues page.

* See Appendix C (this document) for ORDER DENYING

CERTIFICATE OF PROBABLE CAUSE

° See Appendix Item D (this document).

APPENDIX B

App. 19

2003. It was my belief that a post-conviction action under

this section should be filed in the Court and County of

original jurisdiction. However, the clerk of Cumberland

County returned the petition to me with instructions that it

should be filed in Lincoln County Superior Court. I promptly

filed the petition with Lincoln County as instructed. It was

later incorporated into a single post-conviction review

petition, which included additional issues for review. Process

of the post-conviction review petition began on September

13, 2003 upon the denial from the LAW COURT of the

certificate of appeal on the Rule 35 motion. After two oral

hearings and more than two years, finally, on January 12,

2006 Justice E. Allen Hunter issued the “DECISION AND

ORDER” denying the relief requested. Now I am requesting

that the LAW COURT grant a certificate of probable cause

to appeal this latest DECISION AND ORDER.

ISSUE BY ISSUE REASONS WHY CERTIFICATE OF

PROBABLE CAUSE TO APPEAL SHOULD BE

GRANTED (IN SEQUENCE WITH JUDGE HUNTER’S

DECISION AND ORDER)

“DISCUSSION” page 2 “DECISION AND ORDER”

“In his first ground, the Petitioner alleged that police

fabricated evidence”.

As described above, in the history of the case, I had

filed a petition for post- conviction review with the Court of

Original jurisdiction in the manslaughter case (CUM CR-87-

1955) in accordance with M.R.S.A. 305-A 3, B(2).

Cumberland returned it and instructed that it be filed with

Lincoln County. Upon filing the petition with Lincoln

APPENDIX B

App. 20

County I was further instructed that all post-conviction

review issues needed to be filed in the form of a generic

application and | was provided with that application. In the

application it instructs that petitioner list all issues intended

to be raised or risk that the issue will not be heard in due

process of the case. I, therefore, included my contention that

Portland Police Officers investigating the accident in CUM

CR-87-1955 had fabricated evidence in the investigation. As

I was incorporating a review of the prior conviction element,

CR-87-1955, as part of a petition in Wisc-CR-01-048, |

listed it off the top of my head. In completing the form it was

a little confusing merging all the issues involving both the

prior conviction element and the current behavior element in

one petition and the issue of evidence fabrication would have

been an evidentiary matter had a hearing ever occurred in

review of CR-87-1955. It mever did and this issue is

inconsequential to this request for a certificate of probable

cause.

“DISCUSSION” pages 2-3 “DECISION AND ORDER”

“In his second ground, the Petitioner alleged that his prior

conviction for Operating under the Influence and

Manslaughter occurred outside the ten-year sentence

enhancement period under 17-A M.RS.A. §9-A

(Supp.2004)”

“I. Was the court’s sentence illegal because it was

enhanced by a conviction that fell outside the ten year

period provided in 17-A M.R.S.A § 9-A ?”

I found the enactment of 17-A M.R.S.A § 9-A

interesting. I started to communicate with the legal

APPENDIX B

App. 21

department of the Maine Criminal Justice Committee by e-

mail in the year 2001, prior to the Rule 11 Hearing of

January 16, 2002. My inquiries were to the history of LD

2406.’ I was provided with original committee notes,

including notes from a public hearing involving the

legislation. The legislation was finally enacted as 29-A

M.R.S.A. §2411(6) (B), effective several weeks prior to my

November 10, 2000 OUI charge. What | discovered through

this research was that LD 2406 originally contained language

that specifically limited the attachment of a prior

manslaughter conviction to a current OUI offense to within

10 years. However, the final draft of the legislation and the

language of the statute did not refer to a 10 -year period. The

notes from the criminal justice committee referred to

testimonials from the public hearing on the legislation. Those

testimonials from interested public speakers and from

District Attorney Crook argued against any limit on the

“look back period”. One could conclude from this

information that the final version of the bill and the

legislation intentionally mcluded no expressed 10- year

period. I continued to communicate with the criminal justice

committee after I began to serve the prison sentence for the

Wisc-01-048, OUI. I expressed to them my concerns for the

new statute under which I had been convicted. Those

concerns involved the nature of the offense and alcoholism. I

expressed the belief that a large percentage of the people

convicted of OUI were alcoholics and that the disease by

nature involves relapses. I expressed my belief that it is cruel

and unusual punishment to significantly enhance, by statute,

a sentence for OUI by attaching a manslaughter conviction

that may have occurred many years prior to the current

” The legislation that attached a prior manslaughter conviction to a

current OUI offense.

APPENDIX B

App. 22

offense. The individual charged may have had many years of

successful sobriety and no criminal offenses of any kind and

that to have an indefinite look back period may be counter-

productive to the individual’s success with the disease while

having no substantial effect on public safety.

I do not know what prompted the legislature to pass

17-A M.R.S.A § 9-A in the 2003 session, but I believe they

intended to clarify any ambiguous statutes involving the

attachment of prior convictions to raise sentences. I searched

the statutes for such ambiguities and could find no statute

more ambiguous than the one at hand, 29-A M.R.S.A. §

2411(6) (B). It is possible that the legislature, in

consideration of the testimonials at public hearing, removed

the original 10-year stipulation in LD 2406. It is also

possible that they later thought better of it, prompting 17-A

M.R.S.A § 9-A. In interpreting ambiguous statutes there are

precedents. “Criminal statutes must be construed strictly

with ambiguities resolved in favor of accused”. STATE v.

WILDER. Docket No. Cum-99-392. Argued Jan. 4, 2000.

Decided Feb. 24, 2000. citing United States v. Bowen, 127

F.3d 9, 12 (ist Cir.1997); State v. Ashby, 1999 ME 188, &

6, 743 A.2d 1254. It may be common knowledge, as

expressed by Judge Hunter under this issue, that “There is

simply no limitation on the age of the prior conviction for an

alcohol or drug related motor vehicle hoinicide, any such

prior conviction, regardless of age has an enhancing effect.”’,

however, his ruling is the first I’ve seen. He cites no

precedent or statute in support of this ruling. If M.R.S.A §9-

A does not control 29-A M.R.S.A. § 2411(6) (B), which

statutes does it contro]? If it applies to no statute than the

legislation was mere surplusage. There is precedent

regarding legislative surplusage.. "[{N]othing in a statute

may be treated -as surplusage if a reasonable construction

APPENDIX B

App. 23

applying meaning and force is otherwise possible." Struck

v. Hackett, 668 A.2d 411, 417 (Me.1995) STATE v.

HARRIS. Me. 730 A.2d 1249 1999 ME 80.

Justice Hunter did spend several pages analyzing the

retroactive application of such new rules. The key case of

Teague v. Lane, 480 U.S. 288 (1989) was considered in

some detail, however, the follow-up case of SCHRIRO v.

SUMMERLIN Cir.9" No. 03-526 argued April 19, 2004,

decided June 24, 2004 was not. I presented SCHRIRO at oral

hearing and that case extended the retroactive application of

new rules to cases on collateral review when; the rule

addresses “substantive issues”, “rules that narrow the scope

of a criminal statute by interpreting its terms” Bousley v.

United States, 523 U.S. 614, 620-621(1998), rules “that

place particular conduct or persons covered by the statute

beyond the State’s power to punish, see Saffle v. Parks, 494

U. S. 484, 494B495 (1990)”, and “ A rule is substantive

rather than procedural if it alters the range of conduct or the

class of persons that the law punishes.”, which is the

situation with M.R.S.A § 9-A.

The issue of retroactive application of new rules in

regards to 17-A M.R.S.A § 9-A becomes significant only if

the new rule applies to 29-A M.R.S.A. § 2411(6) (B),

independent of whether a case is on direct or collateral

review. If the LAW COURT knows that the new rule does

not apply to this statute it may be desirable to eliminate any

confusion over it by hearing this case and issuing a

precedent. I pray that a ruling is forthcoming. If 17-A

M.R.S.A § 9-A does apply to 29-A M.R.S.A. §2411(6) (B),

_ than further consideration of SCHRIRO v. SUMMERLIN

Cir.9" No. 03B526 and retroactivity may be required.

APPENDIX B

App. 24

“Ii. Was the court’s sentence_illegal because it violated

constitutional ex post facto prohibitions?”

I have filed numerous memorandums with the

Superior Court in both the Rule 35 motion, Lin-03-466 and

in the current post-conviction petition, Cr-01-017. I did not

intend to, nor do I believe I ever did, take the position that

29-A M.R.S.A. § 2411(6) (B) was “in violation of the ex

post facto clause, U.S. Const. Art I. § 10 and the recent U.S.

Supreme Court ruling in Apprendi v. New Jersey, 530 U.S.

466, 490 (2000)” as stated by Judge Hunter at page 7 under

“ay”. Judge Hunter nearly states my position correctly under

“A. Ex post facto” at page 7. “The petitioner argues that

‘[a]pplying a new statute to a crime that is defined by

behavior that occurred prior to the effective date of a statute

violates ex post facto laws’ ”. Judge Hunter states “ To

begin, 29-A M.R.S.A. § 2411(6) (B) does not define the

. crime_of operating under the influence, it merely [emphasis

added] enhances the possible range of penalties by re-

classifying the crime from class D to C”. The language, “new

substantive offense” and “a crime being defined by its

elements” and “element” and “enhancement factor’ is

language arising from every relevant case on the subject of

“enhancing” sentences since McMillan v. Pennsylvania , 477

U.S. 79 (1987) and any case referenced by McMillan. The

U.S. Supreme Court from McMillan to Apprendi _v. New

Jersey, 530 U.S. 466 (2000) has provided the language and

terminology needed to proceed with any discussion of

factors that increase sentences. The Maine Supreme Court

® Justice Robert W. Clifford, Associate Justice of the Maine Supreme

Court has made a similar statement in the one page “ORDER DENYING

CERTICATE OF PROBABLE CAUSE” , from Lin-03-466 , rule 35

motion.

APPENDIX B

App. 25

has cited Apprendi in State v. Hodgkins, No. Docket: Oxf-

02-413 (Me. 04/24/2003), "facts that expose a defendant to a

punishment greater than that otherwise legally prescribed

[are] by definition 'elements' of a separate legal offense." A

separate legal offense became effective in July of 2000 with

passage of LD 2406 in the Maine legislative session. That

new substantive offense was 29-A M.R.S.A. § 2411(6) (B).

The offense consists of two elements; a prior conviction

element of vehicular homicide while under the influence of

an illegal blood alcohol level and the element of a current

behavior of operating under the influence. The fact that the

classification of crime changes from a Class D to a Class C

is the standard that the U.S. Supreme Court has adopted in

labeling a sentencing factor as an “element of a new separate

offense” and not “merely” an enhancement as proposed by

Judge Hunter. The constitutional impact is significant.

I believe it necessary to briefly reference Judge

Hunter’s DECISION AND ORDER out of sequence. I need

to move from the middle of page 7 to paragraph | of page 9.

Judge Hunter states ‘This court is not required to engage in

the “element” verses “enhancement factor” analysis put forth

by the Petitioner as Apprendi is not applicable to this case.’

With this statement in mind I would return to the middle of

page 7 of the DECISION AND ORDER. Judge Hunter

begins a review of the watershed case law of the ex post

facto clause and offers this very narrow language from

Stogner v. California, 509 U.S. 607, 612 (2003) and Calder

v. Bull, 3 Dall 386,390-391(1798) as the current standard in

determining ex post facto violations. If Judge Hunter has

chosen not to engage in an analysis of “elements” verses

“enhancement factors” there is no reason to engage in an

analysis of the constitutional implications of 29-A M.R.S.A.

§ 2411(6) (B). This statute has no ex post facto implications

APPENDIX B

App. 26

if the prior criminal homicide conviction is “merely” an

enhancement factor. There are ex post facto implications

only if the pnor criminal homicide is an “element of a new

separate offense” and a sentence is administered for that

offense as “defined” by its elements. | do not believe there

can be any rational discussion of ex post facto without first

reaching a conclusion concerning what constitutes: the

elements of the offense charged in Lin CR-01-048, State v.

Chisholm (2001). At that point I would need to address the

well seated general conclusion, in both the U.S. Supreme

Court and Maine Supreme Court case law, that in recidivist

cases sentences attach only to the current behavior and not to

prior convictions and are therefore not subject to the ex post

facto or double jeopardy clause of the U.S. Constitution.

That analysis would involve a comparison of recidivist

criminal statutes that were in place when the prior conviction

element or enhancement factor occurred and recidivist

statutes that were enacted after the prior conviction element

or enhancement factor occurred. There is a long line of

applicable case law including MILLER v. FLORIDA, 482

U.S. 423 (1987). This and other cases discuss statutes and

sentencing guidelines that change the “legal consequences”

of prior conviction elements of crimes.

The remainder of “II A. pages 7-8” of Judge Hunter’s

PECISION AND ORDER continues to discuss the ex post

facto clause in the context of a prior conviction as a

“sentencing enhancement’. | completely agree with his

statement; ‘If this court were to adopt the proposition that a

conviction is “aggravated” for the purpose of the Ex Post

Facto Clause when it can merely be used to enhance a

penalty for a later crime, then criminal histories could rarely

be used during any sentencing. Such an interpretation of the

APPENDIX B

App. 27

U.S. Constitution would yield absurd far-reaching results.’ I

absolutely agree.

“B. Apprendi”

I believe that Judge Hunter’s application of Apprendi

to this case, Chisholm, and his interpretation of my

application of Apprendi to this case is in obvious error.

First, | largely depend on Judge Thomas’s concurring

opinion. I consider his historical analysis of prior convictions

as elements of crimes as a precursor to a further delineation

of the principles and standards established in the case.

McMillan v. Pennsylvania , 477 U.S. 79 (1987) through

Apprendi v. New Jersey, 530 U.S. 466 (2000) have set a

standard as to what sentencing factors deserve the full

application of constitutional protection. I believe it is well

established by these precedents that any sentencing factor

that increases the punishment available for a crime is in fact

an element of the crime and entitled to full constitutional

protection. The only aspect of this protection to which prior

conviction elements are exempt has been clearly stated in

Apprendi and is accurately quoted by Judge Hunter as

follows:

*[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”

I have never taken the position in any filing with the

Superior Court of Lincoln County that the prior conviction

element of Chisholm “must be submitted to a jury, and

APPENDIX B

App. 28

proved beyond a reasonable doubt.” However, there is

nothing in Apprendi that exempts prior convictions from all

other constitutional protections including the ex post facto

clause. There is no statement in Apprendi, or any prior U.S.

Supreme Court Ruling, that exempts prior convictions as

elements of crimes when the prior conviction causes the

statutory maximum sentence to be raised. I do not believe

that any jurist adequately familiar with the line of US.

Supreme Court cases and Maine Supreme Court cases that

address prior convictions as sentencing factors could

conceivably conclude that prior convictions have been

exempted as elements of crimes as Judge Hunter has

proposed.

“III. Did the Petitioner receive ineffective assistance of

counsel because his attorney failed to challenge, by post-

conviction review, his 1989 conviction for Manslaughter

and OUI?”

By statutory right, I was entitled to a post-conviction

review of the prior vehicle manslaughter conviction, if

legitimate grounds existed and it was my desire to pursue

that defense’. That right is given by the legislature in

M.R.S.A. Title 15, Chapter 305-A. 15 § 2124, section 3 (C).

“C. A pending trial or any of the restraints or impediments

specified in subsection | following a criminal judgment in

* Judge Hunter ordered and received an affidavit from Attorney Thomas

Hallett, the defense attorney in Cr-87-1955 and Cv-89-1271, the criminal

and civil proceedings that resulted from the manslaughter indictment of

1987: Hallett expressed the opinion that a sufficient factual and legal

basis existed to justify a post-conviction review of the prior conviction

element of Lin CR-01-048. The affidavit is included in the record of the

case.

APPENDIX B

App. 29

this State, another state or in a Federal Court for a criine for

which proof of the criminal judginent of this State that is

challenged constitutes an element of the subsequent crime.”

This statute acknowledges that a criminal judgment can

constitute an element of a subsequent crime. As Lin-CR-01-

048, State _v. Chisholm, incorporated a prior vehicular

manslaughter conviction as an element of the charging

instrument, M.R.S.A. Title 15, Chapter 305-A. 15 § 2124,

section 3 (C) was available as an affirmative defense to the

charge. Despite my insistence that this defense be pursued,

my attorney refused to initiate the petition without providing

any legal basis for the refusal.

Judge Hunter has cited McEachern v. State, 456 A

2d. 886 (Me. 1983). He paraphrases the case in stating “The

LAW COURT found that an allegation of ineffective

assistance of counsel in a previous post-conviction review

proceeding deprived the court of jurisdiction because a

previous post-conviction review proceeding is not a “post

sentencing proceeding”. There was never a “previous post-

conviction proceeding” in Lin -Cr-01-048. I have claimed

ineffective assistance of counsel in that the attorney failed to

pursue a legitimate and very justifiable defense to the class C

charge in Lin-CR-01-048. Judge Hunter had already ruled in

a preliminary hearing that an ineffective ass‘stance of

counsel claim was a legitimate issue under the post

conviction review statute.

Independent of the attorney’s failure to pursue that

legitimate defense, I personally filed a petition for post-

conviction review with Cumberland County in accordance

with M.R.S.A. Title 15, Chapter 305-A. 15 § 2124, section 3

Lincoln County at the direction of Cumberland County

APPENDIX B |

App. 30

Superior Court. | believe that petition met the prerequisites

under “restraints and impediments” as described in

subsection 1 of Chapter 305-A. 15 § 2124. That petition is

part of the record being transferred to the LAW COURT

now. I fully expected this separate petiticn, originally filed in

Cumberland, to be incorporated into this proceeding and it

was. At oral hearing at the Penobscot County Superior

Court'’, Judge Hunter informed the State of Maine, District

Attorney Geoffrey Rushlau, and Petitioner Chisholm that the

record of CR-87-1955 and Cv-89-1271 was in the Court’s

possession as a clerk carried stacks of filings into the

courtroom and placed them on the Judge’s bench. Judge

Hunter has issued no ruling on the portion of the current

petition that challenges the constitutionality of the prior

criminal conviction element of CR-01-048.

“IV. Did the Petitioner receive ineffective assistance of

counsel because his second attorney failed to pursue his

motion to dismiss?”

I do not doubt that Judge Hunter has accurately

presented the standards for determining a claim of

ineffective assistance of counsel, under the circumstances of

a plea of guilty.

| take particular interest in item “2.” of the Aldus

standard. As evidenced by my letter'' to Judge Hunter within

days following the Rule 11 hearing, | had problems with the

legal advice Attorney Purdy had offered regarding the

definition of the term “element of a crime”. | had expressed

that dissatisfaction to Judge Hunter when he asked me in the

March 31, 2006.

'’ Appendix Item A.(this document)

APPENDIX B

App. 31

course of the Rule 11 hearing if | understood. and was aware

of each element of the crime for which | was pleading guilty.

At that point in the proceeding Judge Hunter ordered a recess

so that I could confer further with Attorney Purdy. In

conference with Attorney Purdy I made one definitive

statement. “If you guarantee me that the prior conviction for

manslaughter was not an element of the crime as the term is

used in 17 A- M.R.S.A. §1 and as presented in my motion to

dismiss I will plea guilty here today. If you can not make that

guarantee I will cancel this proceeding and proceed to trial”.

Attorney Purdy stated that the vehicular manslaughter charge

was not an element of the crime in the meaning of 17 A-

M.R.S.A. §1 as quoted in my motion to dismiss. Court re-

adjourned and I entered a guilty plea.

I do not believe that Attorney Purdy intentionally

mis-represented the law. I do believe that he was not

sufficiently familiar with the law of the case to differentiate

between prior convictions that are “enhancement factors”

and those that are “elements of the crime”. Without that

understanding Attorney Purdy was in no position to advise

me either way. Does that fall below an acceptable standard

of representation. I don’t know. What I do know is that the

Maine Rules of Criminal Procedure direct a Judge presiding

over a Rule |! hearing to ascertain whether a defendant

understands each element of the crime for which he is

pleading guilty. At the top of page 9 of the DECISION AND

ORDER under “B. Apprendi” Judge Hunter clearly states

“This court is not required to engage in the ‘element’ versus

‘enhancement factor’ analysis put forth by the Petitioner as

Apprendi is not applicable to this case.” 1 have already

criticized Judge Hunter’s application of Apprendi principles

above. But what this quote clearly estauiishes is that Judge

Hunter has not engaged in the “element” verses

APPENDIX B

App. 32

“enhancement factor” analysis as the U.S. Supreme Court

has so properly and articulately done from McMillan_v.

Pennsylvania , 477 U.S. 79 (1987) to Apprendi _v. New

Jersey, 530 U.S. 466 (2000). Without having done so either .

prior to the Rule 11 hearing or since, it is impossible that

Judge Hunter could have ascertained whether I understood

the elements of the crime for which | was pleading guilty.

The requirements of the Maine Rules of Criminal Procedure

were not fulfilled at the Rule 11 hearing.

In the first paragraph of page 11 of the DECISION

AND ORDER Judge Hunter refers to a motion to dismiss by

attorney Maddoxx. As I was unaware that Attorney

Maddoxx had such a motion pending and still am. I could

not very well claim that Attorney Purdy should have pursued

it.

Lastly, I believe that Judge Hunter has mistakenly

and erroneously represented the Maine Criminal Code in the

last paragraph of the DECISION AND ORDER. 17-A

M.R.S.A § 1 The Maine Criminal Code, Title 17-A, Part 1,

Chapter 1, 1 provides at (1) that

“When it is alleged that an element occurred on or

about any date prior to the effective date of the code,

the prosecution shall be governed by the prior laws.”

and (2) that

“For purposes of this section, a crime was committed

subsequent to the effective date if all of the elements

of the crime occurred on or after that date; a crime

was not committed subsequent to the effective date if

any element thereof occurred prior to that date, or if

the evidence may reasonably be interpreted to

establish that any element may have occurred prior to

APPENDIX B

App. 33

that date. [1981, c. 324, | (amd).](emphasis

added).@

and (6) that

“Application to crimes outside the code

1. The provisions of Parts 1 and 3 and chapter 7 are

applicable to crimes defined outside this code, unless

the context of the statute defining the crime clearly

requires otherwise. [1989, c. 502, Pt. D, 9

(amd).]”

and 17-A Chapter 4, section |

“Criminal statutes drafted in the future must conform

as closely as possible to the general principles and

guidelines set out in the code. Therefore, the Maine

Criminal Code should serve as the basic model for

drafting any proposed statute that deals with crimes,

civil violations, or civil penalties.”

The “code”, of course, is “statutes”. The “general

principle” is that all elements of a crime must occur on or

after the effective date of a statute.'* As stated above by the

drafters of the group of statutes referred to as the criminal

code, the principles and provisions of the code apply to

crimes defined outside the code, and to “statutes drafted in

the future”’. .

'? This general principle is consistent with the ex post facto clause of

the U.S. Constitution, and all precedents in common law including

Stogner v. California, 509 U.S. 607, 612 (2003) and Calder y. Bull, 3

Dall 386,390-391(1798)as cited by the current DECISION AND

ORDER.

APPENDIX B

App. 34

These are the words of the Maine Legislature. Judge

Hunter has stated “§ 1 merely states that crimes occurring

prior to the enactment of the Maine Criminal Code in 1976

were to be governed by the prior law and visa versa.” These

are the words of Judge Hunter, without reference to any of

the words from the Maine Legislature who drafted the law

and principles in the code and without reference to any

Maine Law Court Rulings.

I'll admit common law rulings in this regard are

scarce. In fact the only one | can find is State v. Clarke, 396

A. 2d 228(Me. 1979). It involves 7 M.R.S.A.§ 3451, which

in Clarke at 3 is described as a statute which “was [were] not

repealed by the code” which became effective on May 1,

1976. It was decriminalized on October 24, 1977 in 17-A

M.R.S.A. § 4-A (4)(Supp.1977). As with this section,

sections of 17-A M.R.S.A. have been repealed and rewritten,

and behaviors criminalized and de-criminalized, with every

legislative session since the effective date of the code. Clarke

instructs in “[18]” to “insert § 4-A(4) into the first sentence

of § 1(2) so that it then reads “§ 4-A ‘shall become effective

[October 24, 1977] and shall apply only to crimes committed

subsequent to its effective date”. The principles of 17-A

M.R.S.A § 1 has stated that a crime is defined by its

“elements”, and al) elements must occur on or prior to

effective date of ihe statute defining the crime. McMillan v.

Pennsylvania , 477 U.S. 79 (1987) through Apprendi v. New

Jersey, 530 U.S. 466 (2000) has stated the same principle.

Justice Thomas’s oncurring opinion in Apprendi has given

the historical basis for treating prior convictions as elements

of the crime. Therefore, that basis existed prior to the

effective date of the Maine Criminal Code. Apprendi has set

the standard for deciding which prior convictions are

APPENDIX B

App. 35

“elements” and which are not. In the case of 29-A M.R.S.A.

§2411(6) (B) a “new separate offense” of OUI] became

effective in July of 2000. The elements of the Chisholm

offense was a vehicular homicide conviction in 1988 and a

subsequent OUI in November of 2000. In Maine Law, as

Stated in the principles and law above, all elements of the

crime did not occur subsequent to the effective date of the

statute defining the “new separate offense”. In U.S. Supreme

Court Law, i.e. Apprendi, there has been no exception made

for prior convictions as applied to the ex post facto clause.

The punishment of a criminal offender does not attach to a

prior conviction used to enhance a current offense, however,

I believe the U.S. Supreme Court would rule that punishment

does attach to a prior conviction that reaches the level of an

“element of the crime”, per Apprendi. Accordingly, unless

the subsequent punishment for a prior offense was already by

statute in effect on the date of the prior offense, the

consequences and punishment for that offense have been

increased and this violates the ex post facto clause per

Stogner v. California, 509 U.S. 607, 612 (2003) and Calder

v. Bull, 3 Dall 386,390-391(1798) as cited by Judge Hunter.

Therefore, I believe that Judge Hunter’s ruling that

neither 17-A M.R.S.A. § 1 nor Apprendi apply to this case

is In error.

CONCLUSION

I believe the following to be true:

1. There has been no due process in considering the post

conviction review petition challenging the constitutionality

of the pnor vehicular manslaughter conviction, Cum CR-87-

1955, nor did Judge Hunter ever rule on that challenge.

APPENDIX B

App. 36

2. There has been no due process in applying the principles

of the Maine Cnminal Code to this case. All elements of the

new separate crime charged did not occur on or after the

effective date of the new statute, 29-A M.R.S.A. § 2411(6)

(B). There was ineffective assistance of counsel in his failure

to gain a dismissal of the Class C crime on that basis.

3. The Court has in error failed to apply 17-A M.R.S.A. § 9-

A to of 29-A M.R.S.A. § 2411(6) (B) as moved to do in this

petition.

4. The Court, not knowing that the prior vehicular

manslaughter conviction, Cum CR-87-1955, was an element

of the crime charged could not possibly have informed the

Defendant of all elements of crime for which he was being

charged and to which he was pleading guilty and therefore

the Rule || hearing should be null and void.

5. The court has failed to recognize or even consider the

basis for an ex post facto argument in this case as supported

by Spencer v. Texas, 385 U.S. 554 (1967), In Re Winship,

397 U.S. 358 (1970), Mullaney v. Wilbur, 421 U.S. 684

(1975), Patterson v. New York, 432 U.S. 197 (1977), Engle

v. Isaac, 456 U.S. 107 (1982), Francis v. Franklin, 471 U.S.

307 (1985), Commonwealth v. Wnght, 508 Pa. 25 (1985),

McMillan v. Pennsylvania,477 U.S. 79 (1986), MILLER v.

FLORIDA, 482 U.S. 423 (1987), Specht v. Patterson, 386

U.S. 605, Nichols v. United States, Certiorari to the United

States Court of Appeals for the Sixth Circuit ,No 02-8556,

(June 6, 1994) Almendarez-Torres v. United States, 523

U.S. 224 (1998) Jones v. United States, 526 U.S. 227 (1999),

APPENDIX B

App. 37

Apprendi v. New Jersey No. 99-478 (2000) Supreme Court

of United States.

Wherefore Petitioner, Donald D. Chisholm, prays

that the certificate of probable cause to appeal to the full

Supreme Court of Maine, Sitting as the Law Court, will be

granted.

Signed this 21° day of April , 2006.

ee ”

Donald D. Chisholm

P.O. Box 1402

Rockland, Me. 04841

207-542-1952

APPENDIX B

App. 38

Appendix Item “A”

Donald D. Chisholm January 29, 2002

P.O. Box 120

Vinalhaven, Me. 04863

Honorable E. Allen Hunter

Justice Of the Maine Superior Court

P.O. Box 249

Wiscasset, Me. 04578

Re: State v. Chisholm, No. WISSC.CR-2001 -048

Dear Judge Hunter:

Please find copy of letter from the Public

Defender, Daniel Purdy, to you dated January 6, 2002.

As of that time this case was intended for trial and

a Motion to Dismiss was pending. As I stated to you at

the hearing in accordance with M.R. Crim. P. ILIA on

January 16, 2002, the police report was _ highly

inaccurate. Despite that I did not contest the report on

advise from Attorney Purdy.

Attorney Purdy also advised me that “Defendant’,

Donald D. Chisholm’s Motion for Dismissal of Complaint

for Operating Under Influence, Class C Title 29-A

M.R.S.A. Sec. 2411(1) Docket No. CR-2001 -00086”

which I filed Pro Se back in March of 2001 had no merit

and would not be pursued because Maine Law does not

consider a prior conviction to be an “element of the

crime”. This week I researched the issue as to whether

Maine considers a prior offense an “element of the

crime” when contained in the statute describing a crime

APPENDIX B

App. 39

and discovered that Attorney Purdy was completely

wrong. I have included on e recent case. LANDRY v

STATE, 1990 ME, 575 A.2d 315.

Maine Law does consider a-prior conviction an

“element”. My Motion to Dismiss had merit and was

never ruled on by the Superior Court for nine months

prior to the M.R. Crim. P. 11A hearing.

The plea agreement did not include a contingency

that the Motion to Dismiss be preserved for review by the

Law Court. I will nevertheless file for permission to have

the issues contained in the motion reviewed.

I find it hard to believe that an Attorney, Court

Appointed or otherwise would advise a client-that a prior

conviction when joined with a current offense is not

considered an element of the crime. I find it hard to

believe that a defendant can file a Motion to Dismiss in a

timely manner and have no ruling for nine months. I

understand that you were not sitting in Lincoln County

during those 9 months and the motion never came before

you.

This is very upsetting.

Yours Truly,

“ ”

Donald D. Chisholm

“1/30/2002

_ Receipt of letter noted.

No Action required in

response. Any further

request for relief can

be addressed in due

course by presiding

Justice.

E. Allen Hunter”

APPENDIX B

App. 40

Appendix “B”

Topic Page Reference

M.R.Crim. Proc. Rule 35 “Procedural Authority”.......... 1-2

“Factual Background”............ 3-7

“Procedural History” .......... 7- 47

ISSUES AND LAW

1. THE CHARGES IN CR-2001-00086 (first ancillary

complaint) and CR-01-048 (second ancillary complaint) DO

NOT QUALIFY AS “ADDITIONAL CHARGES ARISING

FROM THE ORIGINAL INCIDENT OR COURSE OF

CONDUCT” AS DEFINED IN MAINE RULES OF

CRIMINAL PROCEDURE RULE 3(A) AND THEREFORE

THE STATE IS PROHIBITED FROM COMMENCING

THE CHARGES UNDER A NEW DOCKET NUMBER OR

OTHERWISE.

II. EVEN IF THE COMMENCEMENT OF THE

CLASS C COMPLAINT, CR-2001-00086 OR CR-01-048,

WAS ALLOWED UNDER THE MAINE RULES OF

CRIMINAL PROCEDURE RULE 3 (A), THE PRIOR

CRIMINAL HOMICIDE CONVICTION, AS THE

ESSENTIAL ELEMENT OF THE CLASS C FELONY

CHARGE, OCCURRED PRIOR TO THE EFFECTIVE

DATE OF THE STATUTE THAT ESTABLISHED THE

CRIMINAL HOMICIDE AS AN ELEMENT AND THE

CLASS C FELONY CHARGE CAN THEREFORE NOT

BP DUSEAINED. ccccccccvvccvcccvvcvesssevescoecesveeoese 52-60

APPENDIX B

App. 41

Appendix “B”

Il. TITLE 29-A, CHAPTER 23, § 2411 AND OTHER

STATUTES WHICH ATTACH PRIOR CONVICTIONS

AS ELEMENTS OF A CRIME ARE SUBJECT TO A

GENERAL STATUTE OF LIMITATIONS IN M.R.S.A. 17-

A, PART 1, GENERAL PRINCIPLES , CHAPTER 1,

PRELIMINARY, AND THEREFORE THE CLASS C

CHARGING INSTRUMENT WAS DEFICIENTLY PLED

IV. TH - PRIOR CONVICTION ELEMENT’ OF CR-01-

048 OCCURRED 12. YEARS PRIOR TO _ THE

LEGISLATIVE ENACTMENT LD2406, M.R.S.A. 17-A §

2411, AND AS THAT ENACTMENT CHANGES THE

LEGAL CONSEQUENCES OF THE PRIOR

CONVICTION ITS APPLICATION TO THIS CASE IS

PROHIBITED PER THE U.S. CONSTITUTION EX POST

FACTO CLAUSE, ARTICLE 1, SECTION 19

V. AS | HAD A STATUTORY RIGHT TO FILE A

PETITION FOR POST CONVICTION REVIEW OF

THE PRIOR CONVICTION ELEMENT IN

ACCORDANCE WITH M.R.S.A. TITLE 15, CHAPTER

305-A. 15 § 2124 AND THE LINCOLN COUNTY

SUPERIOR COURT DENIED THAT RIGHT, A

CONVICTION WAS OBTAINED WITHOUT DUE

PPP ele ondducnccotdscntbccitueesnieseiaboaedasen 64

VI. AS I FILED A “MOTION FOR DISMISSAL.”

PRIOR TO THE ARRAIGNMENT OF CR-2001-00086

(FIRST ANCILLARY COMPLAINT) AND CR-01-048

APPENDIX B

App. 42

(SECOND ANCILLARY COMPLAINT) AND THE

LINCOLN COUNTY DISTRICT AND SUPERIOR

COURTS STONEWALLED THAT MOTION,

EFFECTIVELY ASSISTING THE STATE IN COERCING

A GUILTY PLEA, THE CONVICTION WAS OBTAINED

WITHOUT DUE PROCESS OF LAW

Vil. AS | ENTERED A GUILTY PLEA WITHOUT

BEING PROPERLY APPRISED AS TO THE ELEMENTS

OF THE CRIME BEING CHARGED PER M.R. CRIM.

PROC.RULE Il(c)(1) THE GUILTY PLEA WAS

OBTAINED WITHOUT DUE PROCESS OF LAW

CONCLUSION AND RELIEF REQUESTED .......... .66

APPENDIX B

App. 43

Appendix Item “C”

STATE OF MAINE

SUPREME JUDICIAL COURT

Sitting as the Law Court Docket No. Lin-03-466

DONALD D. CHISHOLM _)

Petitioner )

v. ) ORDER DENYING

) CERTIFICATE OF

STATE OF MAINE ) PROBABLE CAUSE

Respondent _)

Pursuant to M.R. Crim. P. 35(f) and M.R. App. 19(a),

the petitioner has filed a notice of appeal from an order of

the Superior Court in the above-entitled proceeding denying

a motion for correction or reduction of sentence, which

notice by law constitutes a request for a certificate of

probable cause.

Upon consideration of the proceedings in the

Superior Court and any memorandum filed by the petitioner

in support of his request for a certificate of probable cause, it

is apparent that the appeal does not raise any issue worthy of

being fully heard.

Petitioner alleges his sentence of three years for

operating under the influence (OUI) Class C is illegal, and

that 29-A M.R.S.A. § 241 1(6)(B), elevating an OUI

conviction to a Class C offense based on a prior conviction,

is an unlawful ex post facto law.

APPESDAN @

App. 44

It is ORDERED that a certificate of probable cause to

proceed with the appeal be and hereby is denied. It is

FURTHER ORDERED that a copy of this order, together

with the proceedings in the Superior Court now on fiie in this

Court, be returned to the clerk of the Superior Court.

Dated:

“September 15, 2003

For the Court,

“cc ”

Robert W. Clifford

Associate Justice

“RECEIVED

Sep 16 2003

Supreme Judicial Court”

APPENDIX B

App. 45

Appendix Item “D”

Donald D. Chisholm

P.O. Box 140

Vinalhaven, Me. 04863

Robert W. Clifford September 20, 2003

Associate Justice

Supreme Judicial Court

P.O. Box 368

Portland, Me. 04112-0368

RE: Docket No. Lin-03-466 “ORDER DENYING

CERTIFICATE OF PROBABLE CAUSE” (copy) “it is

apparent that the appeal does not raise any issue worthy of

being fully heard”

Dear Honorable Sir:

It is easy to make such a statement when it is backed

by no reference to law. It may be that the statement is so

obviously true that no reference is required but that is not my

belief. My belief is that common courtesy requires and all

U.S. citizens deserve such a reference.

As to your “ORDER DENYING CERTIFICATE OF

PROBABLE CAUSE” it surely misrepresents both my

presentation of the issues and my dependence on the Maine

Rules of Criminal Procedure, Maine Legislative Statutes and

Maine common law rulings. :

First, I filed a notice of appeal based on Maine Rules

of Appellate Procedure, Rule 2 (a)(2) , 20 (i) and State v.

White, 2001 ME 65, 4 3, 769. You were a concurring jurist

in that case.

APPENDIX B

App. 46

“A sentence of any length may be appealed as a

matter of right where the defendant claims that

the sentence is illegal, imposed in an_ illegal

manner or beyond the jurisdiction of the court,

where the illegality appears plainly in the record.

Jurisdiction was the issue from the time of the

indictment until present. The issue may be unfounded but my

presentation of it reflects a true representation of what my

position has been. I formally raised the jurisdictional issue

by motion prior to the Class C indictment. You have stated

in your ORDER “petitioner alleges his sentence ...is an

unlawful ex post facto law.” Although I listed an ex post

facto issue in order to preserve it for The Maine Supreme

Judicial Court and for Federal Habeas Corpus procedures it

has not been the primary legal issue. It wasn’t and isn’t

necessary. You as a jurist of the Supreme Court have

concurred on common law rulings that preclude the

requirement of an ex post facto argument, per se, in

this case. In STATE v. CORLISS, 1998 ME 36, 706 A.2d

593 you, as a jurist, concurred that prior convictions that

have the effect of enhancing a sentence for a current offense

are elements of the crime. At 595

“When the State charges a crime enhanced by

<prior><convictions> of specified crimes, as it did

in this case by charging Corliss with Class C OUI

in violation of 29-A M.R.S.A. 2411, the <prior>

<convictions> are an essential element of the

crime charged. See Landry v. State, 575 A.2d 315,

316-17 (Me. 1990)”

APPENDIX B

App. 47

The U.S. Supreme Court in a series of cases has

acknowledged that Maine and various other States have

taken that position and leaves the issue to the State. The U.S.

Supreme Court has acted only when a State’s position om

element vs. enhancement factor has significantly broadened

the definition of enhancement factor to define away the

constitutional requirement that every element of a crime be

proven beyond a reasonable doubt. Most recently in State v.

Hodgkins , 2003 Me. 57 you, as a jurist, cited Apprendi v.

New Jersey, 530 U.S. 466 (2000) which held that “any fact

_ that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt” re-affirming the fact of a prior

conviction as an element of the crime.

Maine Superior Court Justice Hunter has stated in his

rulings that the prior conviction is not an element of the

crime but rather an enhancement factor - therefore he

believes that M.R.S.A. 17-A Chapter 1 :

“When it is alleged that an element occurred "on

or about" any date prior to the effective date of

the code, the prosecution shall be governed by the

prior law. When it is alleged that all of the

elements occurred "on or about" the effective date

of the code or any date thereafter, the prosecution

shall be governed by the code.” (M.R.S.A. 17-A

Chapter | further states that the same rule applies to

new statutes outside of the code.)

does not apply to my case, that 29-A M.R.S.A. § 2411 (6)

(B) does apply to my case, and that the prior conviction was

properly plead and the case legally moved from District

Court to Superior Court.

APPENDIX B

App. 48

If the U.S. Constitution’s requirement that every

element of a crime be proven beyond a reasonable doubt has

merit and your ruling in STATE v. CORLISS, 1998 ME 36,

706 A.2d 593 has merit, and authority, than the issue is

certainly “worthy of being fully heard”. The U.S. Supreme

Court considers it an extremely worthy issue and there is a

good deal of controversy about it in recent cases.

Secondly, even if the pmor conviction was an

“enhancement factor” rather than an “element of the crime”

and Justice Hunter, therefore, had not failed to inform me of

every element of the crime for which | was being sentenced,

the Maine Legislature has set a statute of limitations on prior

convictions being used as “enhancements” per M.R.S.A. 17-

A, PART 1, § 9-A. My prior conviction falls outside the ten

year limitation and the enhanced C crime was illegal and the

case was not within the jurisdiction of the Superior Court.

You were a concurring jurist in State v. White, 2001

ME 65, 4 3, 769

“Defendant may challenge his sentence as a

matter of right if he has alleged a jurisdictional

infirmity, and he may do so on direct appeal if

that ‘jurisdiction infirmity’ appears on the record

so plainly as to preclude rational disagreement as

to its existence." State v. Cunningham, 1998 ME

167, 9 5, 715 A.2d 156 (quoting State v. Parker,

372 A.2d 570, 572 (Me. 1977)”

It is my opinion and that of numerous other citizens

of at least average intelligence that your rulings in the above

cited cases more than sufficiently define a controversy that 1s

worthy of a full consideration by the Maine Supreme

APPENDIX B

App. 49

Judicial Court or more appropriately an order nullifying the

sentence. Due process required that an appeal by right be

allowed by the Law Court in accordance with above cited

authorities, including yours as a jurist in those cases.

Nevertheless, I thank you for an expedient “ORDER”

and hope the same will be true when in all probability | will

need to file another request for a certificate of probable cause

after the post conviction review is heard before Justice

Hunter. It is unlikely that Justice Hunter will reverse his-

own rulings in the case, although | applaud him for granting

a hearing. Time is a factor in my filing a federal habeas

corpus action so perhaps an order could issue denying any

future applications for certificates of probable cause in any

way related to this case. That would fulfill the federal

requirement for exhaustion of State remedies.

The United States is an incredible gift from God

where ordinary citizens may openly and freely criticize their

government officials without fear of reprisal. God Bless

America. -

Sincerely,

ee %”

Donald D. Chisholm, petitioner

Cc:Honorable Judge Hunter

Criminal Justice Committee, Maine State Legislature

APPENDIX B

App. 50

MAINE SUPREME JUDICIAL COURT. Docket No.Lin-06-213

Sitting as the Law Court December 13, 2006

STATE OF MAINE )

Respondent )

) ORDER DENYING

v. ) CERTIFICATE OF

) OF PROBABLE CAUSE

DONALD CHISHOLM )

Petitioner )

Panel: SAUFLEY, C.J., and: CLIFFORD, DANA,

ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

PER CURIAM

Pursuant to 15 M.R.S.A. § 2131 and M.R. App. P.

19, the petitioner has sought review by the Law Court by

filing a petition seeking a certificate of probable cause in this

post-conviction review proceeding.

We have reviewed the judgment entered in the

Superior Court, and have fully considered the petition and its

request for a certificate of probable cause, as well as the

accompanying memorandum. The petitioner contends that

the Superior Court erred or exceeded its discretion in a

variety of respects, including by its failure to find that his

sentence is illegal because his manslaughter conviction

occurred more than ten years prior to the OUI and, following

his plea, the Legislature enacted 17-A M.R.S. § 9~A (2005),

establishing a look-back period of ten years.

APPENDIX C

App. 51

Based on our review, we determine that no further

hearing or other action is necessary to a fair disposition of

the matter.

It is therefore ORDERED that a certificate of

probable cause to proceed with the appeal is hereby

DENIED.

“RECEIVED

DEC 13 2006

Supreme Judicial Court”

APPENDIX C

App. 52

CHAPTER 23

MAJOR OFFENSES-SUSPENSION AND REVOCATION

(HEADING: PL 1993, c. 683, Pt. A, 2 (new); Pt. B, 5

(aff))

SUBCHAPTER I

- GENERAL PROVISIONS (HEADING: PL 1993, c. 683,

Pt. A, 2 (new); Pt. B, 5 (aff))

M.R.S.A. 29-A § 2411. Criminal OUI

1. Offense. A person commits OUI, which is a Class

D crime unless otherwise provided, if that person

operates a motor vehicle:

A. While under the influence of intoxicants; or

1993, c. 683, Pt. A, _2 (new); Pt. B, _5 (aff).])

B. While having a blood-alcohol level of

0.08% or more. [1993, c. 683, Pt. A, 2 (new); Pt. B, _5 (aff).]

[1995, c. 368, Pt. AAA, 7 (amd).]}

2. Pleading and proof. The alternatives outlined in

subsection 1, paragraphs A and B may be pleaded in the

alternative. The State is not required to elect between the

alternatives prior to submission to the fact finder.

[1993, c. 683, Pt. A, 2 (new); Pt. B, 5 (aff).]

3. Investigation. After a person has been charged with

OUI, the officer shall investigate whether the charged person

has prior OUI offenses. As part of the investigation, the

officer shall make necessary inquiries of the Secretary of

State.

[1993, c. 683, Pt. A, 2 (new); Pt. B, 5 (aff).]

4. Arrest. A law enforcement officer may arrest, without

a warrant, a person the officer has probable cause to believe

has operated a motor vehicle while under the influence of

intoxicants if the arrest occurs within a period following the

APPENDIX D

App. 53

offense reasonably likely to result in the obtaining of

probative evidence of blood-alcohol level or drug

concentration. |

[1993, c. 683, Pt. A, 2 (new); Pt. B, 5 (aff).]

5. Penalties. The following minimum penalties apply

and may not be suspended:

A. For a person having no previous OUI offenses

within a 10-year period: ;

(1) A fine of not less than $400, except that if

the person failed to submit to a test, a fine of not

less than $500;

(2) A court-ordered suspension of a driver's

license for a period of 90 days; and

(3) A period of incarceration as follows:

(a) Not less than 48 hours when the

person:

(i) Was tested as having a blood-

alcohol level of 0.15% or more;

(ii) Was exceeding the speed

limit by 30 miles per hour or

more;

(iii) Eluded or attempted to elude

an officer; or

(iv) Was operating with a

passenger under 21 years of age;

and

(b) Not less than 96 hours when the

person failed to submit to a test at the

request of a law enforcement officer;

(1997, c. 737, _8 (amd).]

B. For a person having one previous OUI offense

within a 10-year period:

APPENDIX D

App. 54

(1) A fine of not less than $600, except that if

the person failed to submit to a test at the

request of a law enforcement officer, a fine of

not less than $800;

(2) A period of incarceration of not less than 7

days, except that if the person failed to submit

to a test at the request of a law enforcement

officer, a period of incarceration of not less

than 12 days;

(3) A court-ordered suspension of a driver's

license for a period of 18 months; and

(4) In accordance with section 2416, a

court-ordered suspension of the person's

right to register a motor vehicle; (1995, «.

368, Pt. AAA, _8 (rpr).)

C. For a person having 2 previous OUI

offenses within a 10-year period:

(1) A fine of not less than $1,000,

except that if the person failed to submit

to a test at the request of a law

enforcement officer, a fine of not less

than $1,300;

(2) A period of incarceration of not less

than 30 days, except that if the person

failed to submit to a test at the request of

a law enforcement officer, a period of

incarceration of not less than 40 days;

(3) A court-ordered suspension of a

driver's license for a period of 4 years;

and

(4) In accordance with section 2416, a

court-ordered suspension of the person's

APPENDIX D

App. 55

right to register a motor vehicle; (1995, c.

368, Pt. AAA, _8 (spr).]

D. For a person having 3 or more previous OUI

offenses within a 10-year period, which is a

Class C crime:

(1) A fine of not less than $2,000,

except that if the person failed to submit

to a test at the request of a law

enforcement officer, a fine of not less

than $2,400;

(2) A period of incarceration of not less

than 6 months, except that if the person

faili:d to submit to a test at the request of

a law enforcement officer, a period of

incarceration of not less than 6 months

and 20 days;

(3) A court-ordered suspension of a

driver's license for a period of 6 years;

and

(4) In accordance with section 2416, a

court-ordered suspension of the person's

right to register a motor vehicle; (1995, c.

645, Pt. B,_ 18 (amd).}

E. If a law enforcement officer failed to provide

the warnings required by section 2521,

subsection 3, the increase in minimum penalties

required because of a refusal to submit to a test

is not mandatory; (1997, c. 737, _9 (amd).]

F. For a person sentenced under paragraph B, C

or D, the court shall order the defendant to

participate in the alcohol and drug program for

multiple offenders. The court may waive the

multiple offender intervention program under

APPENDIX D

App. 56

Title 5, section 20073, subsections 4 and S, if

the court finds that the defendant has completed

a residential alcohol or drug treatment program,

or its equivalent, subsequent to the date of the

offense; and [1997, c. 737, _10 (amd).]

G. The court shall order an additional period of

license suspension of 275 days for a person

sentenced under paragraph A, B, C or D if the

person was operating the motor vehicle at the

time of the offense with a passenger under 21

years of age. (1997, c. 737,_11 (new).]

{[1997, c. 727, _8- 11 (amd).]

5-A. Notice and custody. The court shall give

notice of a license suspension and shall take physical

custody of the driver's license.

[1995, c. 368, Pt. AAA, 9 (new).]

5-B. Additional period of suspension. The

Secretary of State may impose an additional period of

suspension under section 2451, subsection 3 or may

extend a period of suspension until satisfaction of any

conditions imposed pursuant to chapter 23, subchapter

III, article 4,

[1995, c. 368, Pt. AAA, 9 (new).]

6. Aggravated punishment category. An operator

commits a Class C offense if the State pleads and proves

that the operator, while operating a motor vehicle in

violation of this section:

B. Has either a prior conviction for a Class C

crime under this section or a prior criminal

homicide conviction involving or resulting from

the operation of a motor vehicle while under the

APPENDIX D

App. 57

influence of intoxicating liquor or drugs or with

a blood-alcohol content of 0.08% or greater.

[1999, c. 703, 1 (new).]

The sentence must include a period of incarceration. of

not less than 6 months, a fine of not less than $2,000

and a court-ordered suspension of a driver's license for

a period of 6 years. These penalties may not be

suspended.

APPENDIX D

2 EE eV

App. 58

CHAPTER 305-A

POST-CONVICTION REVIEW

15 § 2121. Definitions

As used in this chapter, the following terms have the

following meanings. (1979, c. 701, §15 (new).}

1. Criminal judgment. "Criminal judgment" means

a judgment of conviction of a crime, the orders of

adjudication and disposition in a juvenile case and a

judgment of not criminally responsible by reason of

mental disease or defect.

[1995, c. 286, §2 (amd).]

1-A. Assigned justice. "Assigned justice" means the

Justice or Active Retired Justice of the Supreme Judicial

Court or the Justice or Active Retired Justice of the

Superior Court assigned the post-conviction review

proceeding when a special assignment has been made. It

means any Justice or Active Retired Justice attending to

the regular criminal calendar when the post-conviction

review proceeding is assigned to the regular criminal

calendar.

[1985, c. 209, §1 (new).]

2. Post-sentencing proceeding. "Post-sentencing

proceeding" means a court proceeding or administrative

action occurring during the course of and pursuant to the

operation of a sentence that affects whether there is

incarceration or its length, including revocation of

parole, failure to grant parole, an error of law in the

computation of a sentence and default in payment of a

fine or restitution. It does not include administrative

disciplinary proceedings resulting in a withdrawal of

good-time deductions, revocation of probation,

cancellation of supervised community confinement or

APPENDIX E

App. 59

aftercare status of a juvenile or proceedings before the

Appellate Division of the Supreme Judicial Court.

(1997, c. 464, §1 (amd).]

3. Sentence. "Sentence" means the punishment

-imposed in a criminal proceeding or the disposition

imposed in a juvenile proceeding.

[1983, c. 235, §2 (rpr).j

Section History:

1979, c. 701, § 15S (NEW).

1985, c. 209, § 1 (AMD).

1995, c. 286, § 2 (AMD).

1981, c. 238, § 1 (AMD).

1983, c. 235, § 1,2 (AMD).

1985, c. 556, § 1 (AMD).

1997, c. 464, § 1 (AMD).

1552122. Purpose

APPENDIX E

App. 60

This chapter provides a comprehensive and, except

for direct appeals from a criminal judgment, the

exclusive method of review of those criminal judgments

and of post-sentencing proceedings occurring during the

course of sentences. It is a remedy for illegal restraint

and other impediments specified in section 2124 that

have occurred directly or indirectly as a result of an

illegal criminal judgment or post-sentencing proceeding.

It replaces the remedies available pursuant to _post-

conviction habeas corpus, to the extent that review of a

criminal conviction or proceedings are reviewable, the

remedies available pursuant to common law habeas

corpus, including habeas corpus as recognized in Title

14, sections 5501 and 5509 to 5546, coram nobis, writ

of error, declaratory judgment and any other previous

common law or statutory method of review, except

appeal of a judgment of conviction or juvenile

adjudication and remedies that are incidental to

proceedings in the trial court. The substantive extent of

the remedy of post-conviction review is defined in this

chapter and not defined in the remedies that it replaces;

provided that this chapter provides and is construed to

provide relief for those persons required to use this

chapter as_ required by the Constitution of Maine,

Article 1, Section 10. (1997, c. 399, ‘1 (amd).]

Section History:

1997, c. 399, § 1 (AMD). —— —

1979, c. 701, § 15 (NEW).

15 5 2123. Jurisdiction and venue

1. Jurisdiction. Jurisdiction shall be in the Superior

Court. [1979, c. 701, § 15 (new).]

APPENDIX E

App. 61

1-A. Supreme Court Justice. A single Justice of

the Supreme Judicial Court or an Active Retired Justice

of the Supreme Judicial Court shall have and exercise

jurisdiction, and have and exercise all of the powers,

duties and authority necessary for exercising the same

jurisdiction as the Superior Court relative to a post-

conviction review proceeding. [1985, c. 209, § 2 (new).]

2. Venue. Venue shall be in the county in which the

criminal judgment was entered. Venue may be

transferred by the assigned justice at his discretion. [1983,

c. 816, Pt. B, § 4 (amd).]

Section History:

1983, c. 235, § 3 (AMD).

1983, c. 816, § B4 (AMD).

1985, c. 209, § 2 (AMD).

1979, c. 701, § 15S (NEW).

APPENDIX E

App. 62

155 2124. Jurisdictional prerequisite of restraint or

impediment

An action for post-conviction review of a criminal

judgment of this State or of a post-sentencing

proceeding following the criminal judgment may be

brought if the person seeking relief demonstrates that

the challenged criminal judgment or post-sentencing

proceeding is causing a present restraint or other

specified impediment as described in subsections | to 3:

[1997, c. 399, §2 (amd).}

1. Present restraint by criminal judgment. Present

restraint or impediment as a direct result of the

challenged criminal judgment:

A. Incarceration pursuant to the sentence

imposed as a result of the criminal judgment.

which is challenged; (1979, c. 701, §15 (new).]

B. Other restraint, including probation, parole,

other conditional release or a juvenile

disposition other than incarceration or

probation, imposed as a result of the sentence

for the criminal judgment which is challenged;

(1983, ¢. 235, §5 (amd).]

C. A sentence of unconditional discharge

resulting from a criminal judgment, for a period

of 2 years following the date of sentence; (1979, c.

701, §15 (new).]

D. Incarceration, other restraint or an

impediment specified in paragraphs A, B and C

which is to be served in the future, although the

convicted or adjudicated person is not in

execution of the sentence either because of

release on bail pending appeal of the criminal

APPENDIX E

App. 63

judgment or because another sentence must be

served first; Or [1983, c. 235, §5 (amd).

E. A fine imposed by the challenged criminal

judgment which has not been paid; [1979, c. 701, §15

(new).}

[1983, c. 235, §5 (amd).}

1-A. Present or future restraint by commitment

to the Commissioner of Mental Health, Mental

Retardation and Substance Abuse Services. Present

restraint or impediment as a direct result of commitment

to the custody of the Commissioner of Mental Health,

Mental Retardation and Substance Abuse Services

pursuant to section 103 imposed as a result of being

found not criminally responsible by reason of mental

disease or defect, that is challenged, or future restraint or

impediment as a result of such an order of commitment

that is challenged when a sentence involving

imprisonment is or will be served first.

A claim for postconviction review is not allowed under

this subsection relative to any court proceeding or

administrative action that affects release or discharge

pursuant to section 104-A;

[RR 1995, c. 2, §32 (cor).]

APPENDIX E

App. 64

2: Post-sentencing proceeding. Incarceration or

increased incarceration imposed pursuant to a post-

sentencing proceeding following a criminal judgment,

although the criminal judgment itself is not challenged;

[1979, c. 701, §15 (new).]

3. Present indirect impediment. Present restraint

or impediment resulting indirectly from the challenged

criminal judgment of this State:

A. Incarceration imposed in this State, in

another state or in a Federal Court pursuant to a

sentence for a subsequent criminal judgment for

a crime punishable by incarceration for a year or

more, the length of the incarceration being

greater than it would otherwise have been in the

absence of the challenged criminal judgment of

this State. The criminal judgment which is

challenged must be for a crime punishable by

incarceration for a year or more. This

requirement is not satisfied by a showing only

that the court imposing the present sentence was

aware of the challenged criminal judgment or if

it appears from the length or seriousness of the

person's total criminal record that the

challenged criminal judgment, taking into

account its seriousness and date, could have

little or no effect on the length of incarceration

under the subsequent sentence; (1985, c. 209, §3 (amd).]

B. A pending tnal or incarceration pursuant to a

sentence following a criminal judgment in this

State, in another state or in a Federal Court for a

crime, the degree of which or the potential

penalty of which is increased as a result of the

APPENDIX E

App. 65

challenged criminal judgment of this State. This

requirement is not satisfied unless:

C. A

(1) The subsequent crime, as enhanced,

is, in the case of a crime in this State,

punishable by incarceration of one year

or more or, in the case of a crime in

another jurisdiction, is a felony or an

infamous crime; and

(2) If a sentence for the subsequent

crime has been imposed, the length of

that sentence actually exceeds the

amount of incarceration which could

have been imposed for the subsequent

crime had its potential penalty not been

enhanced by the challenged criminal

judgment; or 1979, c. 701, §15 (new).]

pending trial or any of the restraints or

impediments specified in subsection | following

a criminal judgment in this State, another state

or in a Federal Court for a crime for which

proof of the criminal judgment of this State that

is challenged constitutcs an element of the

subsequent crime. (1979, c. 701, §15 (new).]

(1985, c. 209, §3 (amd).]

Section History:

1985, c. 209, § 3 (AMD).

APPENDIX E

App. 66

1995, RR c. 2, § 32 (COR).

1979, c. 701, § 15 (NEW).

1983, c. 235, § 4,5 (AMD).

1995, c. 286, § 3 (AMD).

1997, c. 399, § 2 (AMD).

15 5 2125. Ground for relief

A person who satisfies the prerequisites of section

2124 may show that the challenged criminal judgment

or sentence is unlawful or unlawfully imposed, or that

the impediment resulting from the challenged post-

sentencing procedure is unlawful, as a result of any error

or ground for relief, whether or not of record, unless the

error 1s harmless or unless relief is unavailable for a

reason provided in section 2126 or 2128. [1981, c. 238, ' 2

(amd).]

Section History:

1979, c. 701, § 15 (NEW).

1981, c. 238, § 2 (AMD).

15 5 2126. Exhaustion

A person under restraint or impediment specified in

section 2124 must also demonstrate that he has

previously exhausted remedies incidental to proceedings

in the trial court, on appeal or administrative remedies.

A person who has taken an appeal from a judgment of

conviction or a juvenile adjudication is not precluded.

from utilizing the remedy of this chapter while the

appeal is pending, provided that the post-conviction

review proceeding is automatically stayed pending

resolution of the appeal unless the Appellate Court on

motion and for good cause otherwise directs. [1985, c. 556,'2

(amd).]

Section History:

APPENDIX E

App. 67

1985, c. 556, § 2(AMD).

1979, c. 701, § 15 (NEW).

1981, c. 238, § 3 (AMD).

APPENDIX E

App. 68

Donald D. Chisholm January 29, 2002

P.O. Box 120

Vinalhaven, Me. 04863

Honorable E. Allen Hunter

Justice Of the Maine Superior Court

P.O. Box 249

Wiscasset, Me. 04578

Re: State v. Chisholm, No. WISSC.CR-2001 -048

Dear Judge Hunter:

Please find copy of letter from the Public Defender,

Daniel Purdy, to you dated January 6, 2002.

As of that time this case was intended for trial and a

Motion to Dismiss was pending. As I stated to you at the

hearing in accordance with M.R. Crim. P. IIA on January

16, 2002, the police report was highly inaccurate. Despite

that, | did not contest the report on advice from Attorney

Purdy.

Attorney Purdy also advised me that “Defendant’,

Donald D. Chisholm’s Motion for Dismissal of Complaint

for Operating Under Influence, Class C Title 29-A M.R.S.A.

Sec. 2411(1) Docket No. CR-2001 -00086” which I filed Pro

Se back in March of 2001 had no merit and would not be

pursued because Maine Law does not consider a prior

conviction to be an “element of the crime”. This week I

researched the issue as to whether Maine considers a prior

offense an “element of the crime” when contained in the

statute describing a crime and discovered that Attorney

Purdy was completely wrong. | have included one recent

APPENDIX F

App. 69

case. LANDRY v STATE, 1990 ME, 575 A.2d 315.

Maine Law does consider a prior conviction an

“element”. My Motion to Dismiss had merit and was never

ruled on by the Superior Court for nine months prior to the

M.R. Crim. P. 11A hearing.

The plea agreement did not include a contingency

that the Motion to Dismiss be preserved for review by the

Law Court. I will nevertheless file for permission to have the

issues contained in the motion reviewed.

1 find it hard to believe that an Attorney, Court

Appointed or otherwise would advise a client-that a prior

conviction when joined with a current offense is not

consilered an element of the crime. I find it hard to believe

that a defendant can file a Motion to Dismiss in a timely

manner and have no ruling for nine months. | understand that

you were not sitting in Lincoln County during those 9 months

and the motion never came before you.

This is very upsetting.

Yours Truly,

ac bb]

Donald D. Chisholm

“1/30/2002

Receipt of letter noted. No

Action required in response.

Any further request for relief

can be addressed in due

course by presiding Justice.

E. Allen Hunter”

APPENDIX F

App. 70

Topic : Page Reference

M.R.Crim. Proc. Rule 35 “Procedural Authority”.......... 1-2

“Factual Background”............ 3-7

“Procedural History” ..........7- 47

ISSUES AND LAW

I. THE CHARGES IN CR-2001-00086 (first ancillary

complaint) and CR-01-048 (second ancillary complaint)

DO NOT QUALIFY AS “ADDITIONAL CHARGES

ARISING FROM THE ORIGINAL INCIDENT OR

COURSE OF CONDUCT AS DEFINED IN MAINE

RULES OF CRIMINAL PROCEDURE RULE 3(A)

AND THEREFORE THE STATE IS PROHIBITED

FROM COMMENCING THE CHARGES UNDER A

‘NEW DOCKET NUMBER OR OTHERWISE.

II. EVEN IF THE COMMENCEMENT OF THE CLASS C

COMPLAINT, CR-2001-00086 OR CR-01-048, WAS

ALLOWED UNDER THE MAINE RULES OF

CRIMINAL PROCEDURE RULE 3 (A), THE PRIOR

CRIMINAL HOMICIDE CONVICTION, AS THE

ESSENTIAL ELEMENT OF THE CLASS C FELONY

CHARGE, OCCURRED PRIOR TO THE EFFECTIVE

DATE OF THE STATUTE THAT ESTABLISHED

THE CRIMINAL HOMICIDE AS AN ELEMENT

AND THE CLASS C FELONY CHARGE CAN

THEREFORE NOT BE SUSTAINED..............-. 52-60

Ill. TITLE 29-A, CHAPTER 23, § 2411 AND OTHER

STATUTES WHICH ATTACH PRIOR

APPENDIX G

App. 71

CONVICTIONS AS ELEMENTS OF A CRIME ARE

SUBJECT TO A GENERAL STATUTE OF

LIMITATIONS IN M.RS.A. 17-A, PART 1,

GENERAL ~~ PRINCIPLES » CHAPTER 8

PRELIMINARY, AND THEREFORE THE CLASS C

CHARGING INSTRUMENT WAS _ DEFICIENTLY

PLED |

IV. THE PRIOR CONVICTION ELEMENT OF CR-01-048

OCCURRED 12 YEARS PRIOR TO THE

LEGISLATIVE ENACTMENT LD2406, M.R.S.A. 17-A

§ 2411, AND AS THAT ENACTMENT CHANGES

THE LEGAL CONSEQUENCES OF THE PRIOR

CONVICTION ITS APPLICATION TO THIS CASE IS

PROHIBITED PER THE U.S. CONSTITUTION EX

POST FACTO CLAUSE, ARTICLE 1, SECTION 10

FR EM DEEL e eT POT Ae me ee On Er ee at ore) DE Pr npee 63

V.AS | HAD A STATUTORY RIGHT TO FILE A

PETITION FOR POST CONVICTION REVIEW OF

THE PRIOR CONVICTION ELEMENT _ IN

ACCORDANCE WITH M.R.S.A. TITLE 15, CHAPTER

305-A. 15 § 2124 AND THE LINCOLN COUNTY

SUPERIOR COURT DENIED THAT RIGHT, A

CONVICTION WAS OBTAINED WITHOUT DUE

PROCESS OF LAW

VI.AS I FILED A “MOTION FOR DISMISSAL.” PRIOR

TO THE ARRAIGNMENT OF CR-2001-00086 (FIRST

ANCILLARY COMPLAINT) AND CR-01-048

APPENDIX G

Vil.

App. 72

(SECOND ANCILLARY COMPLAINT) AND THE

LINCOLN COUNTY DISTRICT AND SUPERIOR

COURTS STONEWALLED THAT MOTION,

EFFECTIVELY ASSISTING THE STATE IN

COERCING A GUILTY PLEA, THE CONVICTION

WAS OBTAINED WITHOUT DUE PROCESS OF

LAW

AS I ENTERED A GUILTY PLEA WITHOUT BEING

PROPERLY APPRISED AS TO THE ELEMENTS OF

THE CRIME BEING CHARGED PER M_.R. CRIM.

PROC.RULE I1(c)(1) THE GUILTY PLEA WAS

OBTAINED WITHOUT DUE PROCESS OF LAW

APPENDIX G

STATE OF MAINE

“SUPREME JUDICIAL COURT

Sitting as the Law Court Docket No. Lin-03-466

DONALD D. CHISHOLM )

Petitioner )

v. ) ORDER DENYING

) CERTIFICATE OF

STATE OF MAINE ) PROBABLE CAUSE

Respondent )

Pursuant to M.R. Crim. P. 35(f and M.R. App. 19(a),

the petitioner has filed a notice of appeal from an order of

the Superior Court in the above-entitled proceeding denying

a motion for correction or reduction of sentence, which

notice by law constitutes a request for a certificate of

probable cause.

Upon consideration of the proceedings in the

Superior Court and any memorandum filed by the petitioner

in support of his request for a certificate of probable cause, it

is apparent that the appeal does not raise any issue worthy of

being fully heard.

Petitioner alleges his sentence of three years for

operating under the influence (OUI)_Class C is illegal, and

that 29-A M.R.S.A. § 241 1(6)(B), elevating an OUI

conviction to a Class C offense based on a prior conviction,

is an unlawful ex post facto law.

It1is ORDERED that a certificate of probable cause to

proceed with the appeal be and hereby is denied. It is

FURTHER ORDERED that a copy of this order, together

APPENDIX H

App. 74

with the proceedings in the Superior Court now on file in this

Court, be returned to the clerk of the Superior Court.

Dated:

“September 15, 2003

For the Court,

Robert W. Clifford

Associate Justice”

“RECEIVED

Sep 16 2003

Supreme Judicial Court”

APPENDIX H

App. 75

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Criminal Action

Docket No.

Docket No. CR-87-1955

* * + * * o * * « ”

DONALD D. CHISHOLM *

Petitioner * PETITION FOR POST

Vv. * CONVICTION

* REVIEW M.R:S.A.

STATE OF MAINE * CHAPTER 305

Respondent * -A 3, B2

* * &* *& *€ &K K* € £ €

STATEMENT OF JURISDICTION AND

PROCEDURAL HISTORY

Subject matter jurisdiction originally existed in the

Cumberland County Superior Court of the State of Maine. In

the years of 1987 and 1988 Petitioner, Donald Chisholm, was

indicted, tried, and then convicted of a two count violation of

17-A M.R.S.A. Section 203(3)(Manslaughter) and 29

M.R.S.A. Section 1312-B (OUI/EBA) before Justice Paul

Fritzsche in a jury-waived trial in Cumberland County

Superior Court. He was sentenced on Count I to an eight year

term of imprisonment in the custody of the Department of

Corrections, with all but six years suspended, followed by a

four year period of probation, and on Count II to a concurrent

364 day term of imprisonment.

Petitioner Chisholm filed a timely notice of appeal to

the Maine Supreme Judicial Court sitting as the Law Court

pursuant to 15 M.R.S.A. §2115 (Supp. 1988) and

M.R.Crim.P. 37 from his criminal judgments in CR-87-1955.

APPENDIX I

App. 76

The docket number assigned by the Law Court to the direct

appeal was CUM-89-48. The Maine Law Court issued a

written decision dated October 18, 1989, found no reversible

error and affirmed the judgment. State of Maine _v.

Chisholm, 565 A.2d 92 (Me. 1989).

On November 10, 2000 Donald Chisholm was

arrested and charged with operating a motor vehicle on a

public way or parking area when his license had been

suspended, 29-A M.R.S.A. 2412-A(1)(E)Class E, and

operating while under the influence of intoxicating liquor, in

violation of 29 M.R.S.A. §2411 (1)(A),(5)(A)(3)(b), Class D.

Defendant Chisholm was arraigned on the charges on

January 17, 2001 (Docket No. CR-2000-01207) at the

Lincoln County Courthouse in Wiscasset. Judge John

Atwood entered not guilty pleas on Chisholm’s behalf. On

March 21, 2001 a second arraignment was conducted based

upon the same November 10, 2000 incident. The Class D

Operating Under the Influence charge was in the process of

being dismissed by the State and a Class C charge was being

initiated in accordance with Title 29-A M.R.S.A. SEC. 2411

(6) effective on August 11, 2000. This complaint was

docketed as “WISDC-CR-2001-00086". Chisholm was

arraigned for a third time on the same incident on June 14,

2001 when the Lincoln County grand jury handed down an

indictment based on subsection (6) of Title 29-A M.R.S.A.

SEC. 2411 (6) (new Docket No. CR-01-048).

Subsection (6) reads as follows:

“A6. Aggravated punishment category. An

operator commits a Class C offense if the State

pleads and proves that the operator, while operating a

motor vehicle in violation of this section:

APPENDIX I

App. 77

A. In fact caused serious bodily injury

as defined in Title 17-A, section 2,

subsection 23 to another person or in

fact caused the death of another person;

or [1999, c. 703,'l (new).]

B. Has either a prior conviction for a

Class C crime under this section or a

prior criminal homicide conviction

involving or resulting from _ the

operation of a motor vehicle while

under the influence of intoxicating

liquor or drugs or with a blood-aicohol

content of 0.08% or greater. [1999, c.

703, 'l (new).]

The sentence must include a period of incarceration

of not less than 6 months, a fine of not less than

$2,000 and a court-ordered suspension of a driver's

license for a period of 6 years. These penalties may

not be suspended. [1999, c. 703, §1 (rpr).] “

This Class C subsection, effective August 11, 2000,

significantly changed the legal consequences of Chisholm’s

1988 conviction for violation of 17-A M.R.S.A. Section 203

(3) (Manslaughter). In removing all statute of limitation

protections provided in Title 29A § 2411 for OUI offenses

the new subsection causes Chisholm’s current November 10,

2000 incident for OUI to-increase from a Class D

misdemeanor, first time offense, to a Class C offense.

Although Mr. Chisholm’s prior conviction occurred twelve

years before the current charge, the new subsection enhances

the Class D violation to a Class C violation when the State

“pleads and proves” the prior conviction. With an indefinite,

retroactive application of the new statute any person having

APPENDIX I

App. 78

been convicted of a violation of 17-A M.R.S.A. Section

203(3)(Manslaughter) at any time in their past had

immediately fulfilled one element of a Class C violation

when the new subsection took effect on August 11, 2000.

Mr. Chisholm fulfilled the second element of the alleged

violation when he was charged with the current OUI on

November 11, 2000. Instead of facing the pre-enactment

penalties of 48 hours in jail, a ninety day license suspension

and a fine of less than $800, the maximum penalties became

5 years in jail, a six-year license suspension and a $5000

fine. Chisholm pled guilty through a Rule 11 Plea Hearing

on January 16, 2002. At that hearing Chisholm specifically

stated that in pleading guilty he was not admitting guilt to the

prior conviction (enhancement factor) and that he reserved

the right to challenge that conviction through a post

conviction review in accordance with M.R.S.A. CHAPTER

305-A 3, B(2).

PROCEDURAL AUTHORITY FOR POST

CONVICTION REVIEW

Mr. Chisholm now challenges the legality of the

“prior criminal homicide conviction involving or resulting

from the operation of a motor vehicle while under the

influence of intoxicating liquor” element of this new

subsection (6) offense and seeks to do so through M.R.S.A.

Title 15 Chapter 305-A. This statute requires certain

prerequisites for post conviction actions.

18 § 2124. Jurisdictional prerequisite of

restraint or impediment

An action for post-conviction review of a

criminal judgment of, this State or of a post-

APPENDIX I

App. 79

sentencing proceeding following the criminal

judgment may be brought if the person seeking

relief demonstrates that the challenged criminal

judgment or post-sentencing proceeding is

causing a present restraint or other specified

impediment as described in subsections | to 3:

[1997, c. 399, '2 (amd). ]

1. Present restraint by criminal judgment.

Present restraint or impediment as a direct result

of the challenged criminal judgment:

A.. Incarceration pursuant to the sentence

imposed as a result of the criminal

judgment which is challenged; [1979, c.

701, §15 (new). ]

B. Other restraint, including probation,

parole, other conditional release or a

juvenile disposition other than incarceration

or probation, imposed as a result of the

sentence for the criminal judgment which is

challenged; (1983, c. 235, § 5 (amd).]

As aresult of CR-01-048, Mr. Chisholm was sentenced to

3 years (all suspended except 10 months), is currently

serving probation of 14 months, owes approximately

$2800.00 in fines and is serving a license suspension of 6

years. This sentence 1s well beyond the maximum sentence

that could have been imposed absent the prior conviction

element, CR-87-1955. M.R.S.A. Title 15 Chapter 305-A

provides for filing a post conviction review based on the

merits of any challenges to the prior conviction element.

APPENDIX I

App. 80

GROUNDS FOR RELIEF

In 1987 Donald D. Chisholm plead not guilty to the

17-A M.R.S.A. Section 203(3)(Manslaughter) charge. A

jury waved trial was conducted in September of 1988.

Justice Paul Fritzsche found Defendant Chisholm guilty

"beyond a reasonable doubt" of the charge.

A wrongful death suit, Docket No. CV-89-1271,

was subsequently brought against Chisholm by Stephen

Beale, the son of Robert Beale, who was killed in the

automobile collision. The trial of CV-89-1271 produced a

finding of fact? which Chisholm believes significantly

challenges the finding of fact from CR-87-1955. In the

current petition Chisholm presents the finding of fact from

CV-89-1271 as new evidence that a guilty beyond a

reasonable doubt standard had not been met in CR-87-1955.

As a jury found in CV-89-1271 that Robert Beale was

negligent and a proximate cause of the accident this petition

claims that the standard for manslaughter provided in 17-A

M.R.S.A. § 33 was not met.

17-A § 33. Result as an element; causation

Unless otherwise provided, when causing a result 1s an

element of a crime, causation may be found where the

result would not have occurred but for the conduct of

' Finding of Fact, Justice Paul Fritzsche, CR-87-1955, TT. 501-529,

Appendix A ...this document.

? See "Special Verdict Form", CV-89-1271, Appendix Item B...this

document.

APPENDIX I

App. 81

the defendant operating either alone or concurrently

with another cause, unless the concurrent cause was

clearly sufficient to produce the result and the conduct

of the defendant was clearly insufficient

.[198,c.324,'14(new). ]

Justice Paul Fritzsche qualified what fact had to be

proved beyond a reasonable doubt in order to reach a guilty

verdict. He stated at page 515 of the trial transcripts that:

15....If the state is unable to prove, by

16 proof beyond a reasonable doubt, that Mr. Chisholm

17 crossed the centerline and hit Mr. Beal's vehicle,

18 the state cannot prove that fact, I don't think

19 that there can be a conviction.

Justice Fritzsche went on in the finding of fact to

review his interpretation of the evidence and why he

interpreted the evidence to indicate that Chisholm had

crossed the centerline into the wrong lane of travel

impacting Robert Beale's car and causing Robert Beale's

death.’ At sentencing Justice Fritzsche stated:

> Chisholm has argued (CUM-94-919 and CUM-92-239) to the Maine

Supreme Judicial Court that Justice Fritzsche's conclusions constitute at

best surmise and conjecture and that the expert testimony on which he

based his opinions was inadmissable per Parker v. Hohman, Me.250

A.2nd 698 (1969). The LAW COURT has never directly referenced the

APPENDIX I

App. 82

“We have a person who was clearly innocent,

clearly minding his own business and was

wrongfully and tragically killed."

The wrongful death suit, CV-89-1271, was filed on or

about December 10 of 1989. The Plaintiffs pleadings

described Mr. Chisholm’s negligence in the same

approximate manner as had been done by Justice Fritzsche’.

Chisholm’s pleadings® did not back down from his original

statement to the police at the scene of the accident on

October 3, 1987. Chisholm's affirmative defense to the suit

was a denial of legitimacy of the criminal finding and the

associated claims of negligence. (See averment 4., 5 ). At the

trial of CV-89-1271 in 1994 the Plaintiff offerred evidence

that the accident reconstruction report of the Portland Police

Department represented the truth as to what happened and

Chisholm offered the specific defense of his eyewitness

account and the testimony of expert witness Alfred Moseley

as evidence that it did not. One position holds that Mr.

Chisholm crossed the centerline into the wrong lane and the

other position holds Robert Beale crossed the centerline into

the wrong lane. The jury found that Robert Beale was

negligent and a proximate cause of the accident. The jury

common law or addressed the issue. See Appendix Item C....this

document ..Parker argument from CUM-92-239.

: Sentencing transcripts are published. | could not find my copies to

include here.

> Justice Fritzsche adopted police report as fact. See police report

Appendix Item D.

® See pleadings averments 4 and 5 , Appendix Item E.

APPENDIX I

App. 83

further found that Chisholm was negligent and that his

negligence was greater than that of Robert Beale.

Chisholm intends to call jury members from CV-89-

1271 to determine first hand exactly what they found to be

true. If the jury found that Robert Beale crossed the centerline

into the oncoming truck driven by Mr. Chisholm, then as

Justice Fritzsche previously stated, supra.," I don't think that

there can be a conviction." That thought would be consistent

with 17-A M.R.S.A. § 33, " Unless otherwise provided, when

causing a result is an element of a crime, causation may be

found where the result would not have occurred but for the

conduct of the defendant operating either alone or

concurrently with another cause, unless the concurrent cause

was Clearly sufficient to produce the result and the conduct of

the defendant was clearly insufficient. [198, c.324,'14(new).]"

If the jury found that Robert Beale was "negligent and a

proximate cause of the accident" because he crossed the

centerline into the wrong lane of travel and Mr. Chisholm was

more negligent because of a high blood alcohol level than Mr.

Chisholm's behavior was clearly insufficient to cause the

result of Robert Beale's death. A driver crossing the centerline

into oncoming traffic is clearly sufficient to cause a death and

therefore in this case Mr. Chisholm's conviction for

manslaughter should be reversed.’

(The grounds for this petition have not previously been considered

by the Superior Court in the form of a post conviction review or by

the Federal Court in form of habeas corpus.)

: A an issue may be “actually” decided even if it is not explicitly

decided, for it may have constituted, logically or practically, a necessary

component of the decision reached. Dennis v. Rhode Jsland Hospital

Trust National Bank, 744 F. 2d 893 (1st Cir.)

APPENDIX I

App. 84

WHEREFORE, Petitioner Donald D. Chisholm, prays

that the Court will schedule a hearing to allow the petitioner to

further present his arguments as to why the conviction in CR-

87-1955 should be reversed and to present further evidence in

that regard.

Executed at Rockland, Maine in the County of Knox this day

January”13”, 2003 by:

Donald D. Chisholm

P.O. Box 532

Rockland, Me. 04841

Verification to Petition

I, Donald D. Chisholm , being first duly sworn,

deposes and says:

I am the petitioner named in the foregoing petition; I

wrote the same; that all matters set forth therein are true to

the best of my personal information and belief and I believe

them to be true.

“ec 9

Donald D. Chisholm

Subscribed and sworn to before me this 13th day of

January, 2003.

“ss ”

Notary Public

APPENDIX I

App. 85

STATE OF MAINE SUPERIOR COURT

CUMBERLAND,ss. CIVIL ACTION

Docket No.:CV-89-1271

STEPHEN E. BEALE, )

Plaintiff )

VS. ) SPECIAL VERDICT FORM

)

DONALD D. CHISHOLM _) “STATE OF MAINE

Defendant ) Cumberland,ss,

Clerk’s Ofice

SUPERIOR COURT

NOV 4 1994

RECEIVED”

1. Was Robert Beale negligent and was his negligence a

proximate cause of the accident? :

Yes_ x. no

If the answer to question No. | is “no”, answer no more

questions. If the answer to question No. | is “yes” please go

on.

2. Was Robert Beale’s negligence equal to that of Donald

Chisholm?

Yeo. no _X

3. Was Robert Beale’s negligence greater than the

negligence of Donald Chisholm?

>. no x

Dated this ___day of November in Portland, Maine.

~ “Mark A. Violette”

Foreperson

“A TRUE COPY

Number of jurors concurring _ “8 “ LucilleJ. Lepitre

Number of jurors not concurring “O “ ATTEST CLERK’

APPENDIX I

App. 86

Further amend the bill by striking out

all of section 1 and inserting in its place

the following:

"Sec. 1. 29-A MRSA § 2411, sub-§6, as

amended by PL 1995, c. 368, Pt. AAA,

§10, is repealed and the following enacted

in its place:

6. Aggravated punishment category.

An operator commits a Class C offense if

the State pleads and proves that the

operator, while operating a motor vehicle

in violation of this section:

A. _In fact caused serious bodily

injury as defined in Title 17-A,

section 2, subsection 23 to another

person or in fact caused the death

of another person; or

B. Has either a prior conviction

for a Class C crime under this

section or a prior criminal

homicide conviction involving or

resulting from _the operation of a

motor vehicle while under the

influence of intoxicating liquor or

drugs or with a_ blood-alcohol

content of 0.08% or greater.

The sentence must include a period of

incarceration of not less than 6 months, a

fine of not less than $2,000 and a court-

APPENDIX J LR 3506(02)

App. 87

ordered suspension of a driver's license

for a period of 6 years. These penalties

may not be suspended.'

Further amend the bill by inserting at the

end before the summary the following:

"FISCAL NOTE

This bill increases the penalty for

certain crimes from Class D to Class C

crimes, resulting in a shift of costs from

the counties to the State. Sentences of

more than 9 months for Class C crimes

must be served in state correctional

institutions at the cost of $67,311 per

sentence based on an average length of

stay of 2 years and 5 months. Sentences

of 9 months or less for a Class C crime

and all sentences for a Class D crime

must be served in county jails.

The Judicial Department may require

additional General Fund appropriations

to cover indigent defense costs related to

these new cases. The amounts can not be

estimated at this time. The additional

workload and administrative costs

associated with the minimal number of

new cases filed in the court system can be

absorbed within the budgeted resources

of the Judicial Department. The

collection of additional fines may also

APPENDIX J | LR 3506(02)

App. 88

increase General Fund revenue by minor

amounts.'

SUMMARY

This amendment replaces the title and

replaces the bill. The amendment makes

it a Class C crime to operate a motor

vehicle under the influence of intoxicating

liquor or drugs if a person has a prior

conviction for a Class C crime under the

aggravated punishment’ category of

criminal OUI or if the person has a prior

criminal homicide conviction involving or

resulting from the operation of a motor

vehicle while under the influence of

intoxicating liquor or drugs or with a

blood alcohol content of 0.08%

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.