Preview:

STATE OF MAINE KENNEBEC, ss. SMOKEY HEATH, Petitioner v. STATE OF MAINE, Respondent

RECEIVC-i) k?iDFILED
, ? I , . , -

,

, ~ E S U P E B @ COURT C ~ ~ R

1025

CRIMINAL ACTION SEP b NO. CR-02-480

mmQ
I

-.,

, ..-C,

,:

.,.i,h

'

">'!
-*

J(:@k

.

DECISION

This matter comes before the court on the amended petition of Smokey Heath for post-conviction review. The petitioner alleges three grounds for review: first, that trial counsel was ineffective by failing to advise petitioner of the actual sentence at that time of plea; second, trial counsel was ineffective at the time of sentencing; and third, ineffective assistance of counsel in failing to recognize that the petitioner was suffering from a mental disease or defect which would render his plea involuntary. The record before the court consists of transcripts of the petitioner's guilty plea and sentencing, mental health evaluations and the testimony and exhbits presented at hearing. The three allegations will be considered separately below. The petitioner's first ground concerns whether lus trial counsel was effective in advising him of the nature and consequences of the sentence. In lus final argument, the petitioner concedes that "defense counsel was competent and industrious." Further, the lawyer/ client letter sent by trial counsel and acknowledged by the petitioner (exhbit 1) is so complete and detailed that there can be no question that the petitioner understood the consequences of h s plea at that time.

The second ground of the petition concerns the presentation of trial counsel at the time of sentencing. A review of the transcript of the sentencing proceeding shows that the sentence is one that had been negotiated between the State and the defense prior to the hearing. Nevertheless, trial counsel spoke at some length concerning the various problems faced by the petitioner during his life including h s mental illness. At no time was counsel's performance any less than one would expect from an attorney of average experience and competence. The petitioner's h r d ground, and the ground most vigorously argued after hearing, is that his attorney did not adequately recognize and take into account petitioner's mental abnormalities. However, the evidence is quite to the contrary. Both in counsel's comments to the sentencing court and in his testimony on this petition, it is clear that counsel fully understood the nature of the petitioner's mental illness and h s assessment that the petitioner was competent to enter the plea and be sentenced. In addition, counsel h r e d an independent psychologist to interview the petitioner and the psychologist was also present during the plea. The psychologist's opinion was that the petitioner was competent as a matter of law, despite the anxiety, depression, posttraumatic stress disorder and personality disorder from w h c h she believes the petitioner suffers. Finally, the court was quite careful and clear in addressing the petitioner during the Rule 1 proceeding and made specific findings concerning the 1 defendant's mental capacity to waive h s constitutional right and that his plea was not tainted or affected by any mental illness. The petitioner fails on h s ground also. Finally, during the hearing the petitioner testified that although he was present, it was h s sister, not hmself, who lulled the victim for whch he was convicted. That testimony was the first time that any of the participants throughout the entire process

had heard of this claim and the court found the testimony to be incredible even if the issue were properly before the court. For the reasons stated above, the entry will be: Petition DENIED.

Dated: September

1'7

/

,2005

/ S. lGrk Studstruu Justice, Superior Court
I

SMOKEY D HEATH vs STATE OF MAINE

SUPERIOR COURT KENNEBEC , s s . Docket No AUGSC-CR-2002-00480

DOCKET RECORD
PL. DOB: 08/06/1975 PL. ATTY: DANIEL PURDY PO BOX 131 13C MEDOMAK TERRACE WALDOBORO ME 04572 WITHDRAWN 04/13/2005 PL. ATTY: JOSEPH STEINBERGER PO BOX 7 ROCKLAND ME 04841 APPOINTED 04/13/2005 Filing Document: PETITION Filing Date: 12/26/2002

State's Attorney: ANDREW BENSON

Major Case Type: POST CONVICTION REVIEW

Charge ( s ) Docket Events:
12/26/2002 FILING DOCUMENT PETITION FILED ON 12/26/2002

PETITION FOR POST CONVICTION REVIEW, STATEMENT OF FACTS AND SUPPORTING MEMORANDUM FOR PETITION OF POST CONVICTION REVIEW, ALSO MOTION FOR APPOINTMENT OF COUNSEL WITH AFFIDAVIT AND STATEMENT OF PRISONER'S ACCOUNT. 12/26/2002 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 12/26/2002 ALL PAPERWORK SENT TO JOHN SIMMONS, LAW CLERK TO JUSTICE HUNTER, TO PENOBSCOT SUPERIOR COURT. 12/26/2002 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 12/26/2002 12/31/2002 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 12/31/2002 DONALD H MARDEN , JUSTICE COPY TO PARTIES/COUNSEL 12/31/2002 Party ( s ) : SMOKEY D HEATH ATTORNEY - APPOINTED ORDERED ON 12/31/2002 Attorney: MARY DAVIS 01/09/2003 POST CONVIC. REVIEW -

ASSIGNMENT ASSIGNED TO DOCKET ON 01/09/2003

POST CONVICTION ASSIGNMENT ORDER FILED AND INCORPORATED HEREIN BY REFERENCE; CASE ASSIGNED TO THE REGULAR CRIMINAL DOCKET; CONDITIONAL APPOINTMENT OF COUNSEL; TIME LIMITS ESTABLISHED. 01/21/2003 MOTION - MOTION FOR EXTENSION OF TIME FILED BY DEFENDANT ON 01/21/2003 01/21/2003 MOTION MOTION FOR FUNDS FILED BY DEFENDANT ON 01/21/2003

01/29/2003 MOTION - MOTION FOR EXTENSION OF TIME GRANTED ON 01/27/2003 DONALD H MARDEN , JUSTICE COPY TO PARTIES/COUNSEL DEADLINE FOR AMENDMENT MAY 30, 2002 AND DEADLINE FOR WITNESS LIST JUNE 30, 2002 01/29/2003 MOTION - MOTION FOR FUNDS GRANTED ON 01/27/2003 Page 1 of 6 P r i n t e d on: 09/19/2005

STATE OF MAINE AUGSC-CR-2002-00480 DOCKET RECORD DONALD H MARDEN , JUSTICE COPY TO PARTIES/COUNSEL; TOTAL AMOUNT APPROVED IS $700. 01/30/2003 MOTION - MOTION TO PREPARE TRANSCRIPT FILED BY PETITIONER ON 01/15/2003 01/30/2003 MOTION - MOTION TO PREPARE TRANSCRIPT GRANTED ON 01/16/2003 DONALD H MARDEN , JUSTICE COPY TO PARTIES/COUNSEL TRANSCRIPT AND SENTENCING COPY TO PHIL GALUCKI AND JANETTE COOK 01/30/2003 OTHER FILING - TRANSCRIPT FILED ON 01/09/2003 RULE 11 TRANSCRIPT FILED BY PHIL GALUCKI 04/03/2003 OTHER FILING - TRANSCRIPT FILED ON 04/03/2003 SENTENCING TRANSCRIPT BY JANETTE COOK FILED. 06/30/2003 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 06/30/2003 07/23/2003 POST CONVIC. REVIEW - ASSIGNMENT ASSIGNED TO JUSTICE ON 07/14/2003 JOHN R ATWOOD , JUSTICE PER ASSIGNMENT ORDER OF CHIEF JUSTICE MILLS 07/23/2003 Partycs): STATE OF MAINE ATTORNEY - LIMITED ENTERED ON 07/23/2003 Attorney: DAVID CROOK 07/23/2003 Party (s): SMOKEY D HEATH ATTORNEY - APPOINTED ORDERED ON 07/23/2003 Attorney: DAVID CROOK 07/23/2003 Party (s): SMOKEY D HEATH ATTORNEY - LIMITED ENTERED ON 07/23/2003 Attorney: DAVID CROOK 07/23/2003 Party (s): SMOKEY D HEATH ATTORNEY - WITHDRAWN ORDERED ON 07/18/2003 Attorney: MARY DAVIS 07/23/2003 Party (s): SMOKEY D HEATH ATTORNEY - APPOINTED ORDERED ON 07/23/2003 Attorney: DAVID PARIS 07/23/2003 Party (s): STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 07/23/2003 Attorney: LARA N O W I 07/23/2003 Party(s): STATE OF MAINE ATTORNEY - LIMITED ENTERED ON 07/23/2003 Attorney: LARA NOMANI 07/29/2003 Party (s): STATE OF MAINE ATTORNEY - WITHDRAWN ORDERED ON 07/23/2003 Attorney: LARA N O W I 07/29/2003 Party (s): STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 07/23/2003 Page 2 of 6

RULE 1 1

P r i n t e d on: 09/19/2005

STATE OF MAINE AUGSC-CR-2002-00480 DOCKET RECORD Attorney: ANDREW BENSON 10/20/2003 SUPPLEMENTAL FILING - AMENDED PETITION FILED ON 10/01/2003 10/23/2003 POST CONVIC. REVIEW - PCR CONFERENCE SCHEDULED FOR 12/29/2003 @ 8:30 JOHN R ATWOOD , JUSTICE 10/23/2003 POST CONVIC. REVIEW - PCR CONFERENCE NOTICE SENT ON 10/23/2003 12/17/2003 POST CONVIC. REVIEW
-

RESPONSE TO PETITION FILED ON 12/17/2003 PCR CONFERENCE HELD ON 12/29/2003

12/31/2003 POST CONVIC. REVIEW -

12/31/2003 POST CONVIC. REVIEW - ORDER RESULTING FROM PCR CONF FILED ON 12/29/2003 JOHN R ATWOOD , JUSTICE COPIES TO COUNSEL. 02/23/2004 SUPPLEMENTAL FILING - AMENDED PETITION FILED ON 02/20/2004 02/25/2004 POST CONVIC. REVIEW PCR CONFERENCE SCHEDULED FOR 02/25/2004

02/25/2004 POST CONVIC. REVIEW - PCR CONFERENCE HELD ON 02/25/2004 JOHN R ATWOOD , JUSTICE Attorney: DAVID PARIS DA: ANDREW BENSON CONFERENCE HELD BY TELPHONE 02/25/2004 POST CONVIC. REVIEW - ORDER RESULTING FROM PCR CONF FILED ON 02/25/2004 PETITIONER TO HAVE UNTIL 3/19/04 TO FILE WITNESS LIST. PETITIONER MAY SEEK COMPETENCY EXAMINATION BEFORE HEARING.-STATE TO RESPOND TO ORIGINAL PETITION AND THE SECOND AMENDMENT TO BE DONE BY 3/2/04 RESPONDENT TO FILE WITNESSLIST ON 3/26/04. PETITIONER TO GIVE ONE WEEKS NOTICE TO RESPONDENT AS TO EXHIBITS TO BE USED AT HEARING I.E. ONE WEEK BEFORE HEARING. COPIES TO COUNSEL. 03/02/2004 POST CONVIC. REVIEW - RESPONSE TO PETITION FILED ON 03/01/2004 STATE'S RESPONSE TO AMENDED PETITION 03/10/2004 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 03/10/2004 03/26/2004 OTHER FILING WITNESS LIST FILED BY STATE ON 03/25/2004

WITNESSES: GREGG BERNSTEIN, KATHRYN THOMAS, JOHN NEWCOMB, BRIAN RINES. 03/30/2004 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 03/30/2004 JOHN R ATWOOD , JUSTICE COPY TO PARTIES/COUNSEL 03/30/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 03/30/2004 03/30/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 03/30/2004 JOHN R ATWOOD , JUSTICE COPY TO PARTIES/COUNSEL 03/30/2004 Party(s) : SMOKEY D HEATH ATTORNEY - WITHDRAWN ORDERED ON 03/30/2004 Attorney: DAVID PARIS 03/30/2004 Party(s) : SMOKEY D HEATH ATTORNEY - APPOINTED ORDERED ON 03/30/2004 Page 3 of 6

Printed on: 09/19/2005

STATE OF MAINE AUGSC-CR-2002-00480 DOCKET RECORD Attorney: 07/22/2004 HEARING PAMELA AMES EVIDENTIARY HEARING SCHEDULED FOR 08/12/2004

@

9:00

NOTICE TO PARTIES/COUNSEL 08/27/2004 HEARING - EVIDENTIARY HEARING NOT HELD ON 08/12/2004 09/22/2004 HEARING EVIDENTIARY HEARING SCHEDULED FOR 10/27/2004
@

9:00 AT THE MAINE

NOTICE TO PARTIES/COUNSEL STATE PRISON 09/22/2004 HEARING - EVIDENTIARY HEARING NOTICE SENT ON 09/22/2004 09/27/2004 MOTION MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 09/23/2004

09/27/2004 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 09/27/2004 JOHN R ATWOOD , JUSTICE COPY TO PARTIES/COUNSEL 09/27/2004 Party (s): SMOKEY D HEATH ATTORNEY - WITHDRAWN ORDERED ON 09/27/2004 Attorney : PAMELA AMES 09/27/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 09/27/2004 10/04/2004 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 09/29/2004 JOHN R ATWOOD , JUSTICE COPY TO PARTIES/COUNSEL 10/04/2004 Party (s): SMOKEY D HEATH ATTORNEY - APPOINTED ORDERED ON 09/29/2004 Attorney: DANIEL PURDY 10/28/2004 HEARING - EVIDENTIARY HEARING CONTINUED ON 10/27/2004 JOHN R ATWOOD , JUSTICE Attorney: DANIEL PURDY DA: ANDREW BENSON Reporter: KIMBERLY MCCULLOCH Defendant Present in Court CONTINUED OVER STATES'S OBJECTION, HEARING WAS TO BE HELD AT THE MAINE STATE PRISON; DEFENDANAT TO FILE MOTION FOR STAGE 1 EXAM, DEFENSE TO GET PAPERWORK FROM MASSACHUSETS, DEFENSE TO GET HIS CLIENT HIS MEDICATION AND DEFENSE TO LET COURT KNOW WHEN HE IS READY TO PROCEED. 11/03/2004 MOTION - MOTION FOR MENTAL EXAMINATION FILED BY DEFENDANT ON 11/01/2004 DA: DANIEL PURDY MOTION FOR FIRST STAGE EVALUATION, FILED. (MOTION FORWARDED TO JUSTICE ATWOOD IN KNOX COUNTY) 11/09/2004 OTHER FILING - COUNSEL VOUCHER FILED ON 11/02/2004 Attorney: PAMELA AMES 11/09/2004 OTHER FILING - COUNSEL VOUCHER APPROVED ON 11/04/2004 JOHN R ATWOOD , JUSTICE 11/09/2004 MOTION - MOTION FOR MENTAL EXAMINATION GRANTED ON 11/04/2004 JOHN R ATWOOD , JUSTICE Page 4 of 6

Printed on: 09/19/2005

COPY SENT TO STATE FORENSIC SERVICE APPOINTMENT SCHEDULED FOR 2/23/05 BY DE.. SCHETKY AT MSP AT 3:00 8:30 BY DR. BAEDER AT MSP 12/20/2004 PSYCHIATRIC EXAM - STAGE ONE REPORT FILED ON 12/20/2004 INCOMPLETE REPORT FILED. 02/28/2005 PSYCHIATRIC EXAM - STAGE ONE REPORT FILED ON 02/28/2005 03/09/2005 PSYCHIATRIC EXAM
-

STATE OF MAINE AUGSC-CR-2002-00480 DOCKET RECORD SECOND AND FEBRUARY 24 AT

STAGE ONE REPORT FILED ON 03/07/2005

BY DIANE SCHETKY, M.D. 04/13/2005 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 04/13/2005 04/13/2005 MOTION MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 04/13/2005

COPY TO PARTIES/COUNSEL 04/13/2005 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 04/13/2005
04/13/2005 Party(s) : SMOKEY D HEATH ATTORNEY - WITHDRAWN ORDERED ON 04/13/2005 Attorney: DANIEL PURDY 04/13/2005 Party (s): SMOKEY D HEATH ATTORNEY - APPOINTED ORDERED ON 04/13/2005 Attorney: JOSEPH STEINBERGER 04/25/2005 ORDER - SPECIAL ASSIGNMENT ENTERED ON 04/25/2005 JUSTICE STUDSTRUP ASSIGNED 05/03/2005 OTHER FILING - COUNSEL VOUCHER FILED ON 04/19/2005 Attorney: DANIEL PURDY 05/03/2005 OTHER FILING - COUNSEL VOUCHER APPROVED ON 04/21/2005 JOHN R ATWOOD , JUSTICE 05/10/2005 HEARING - EVIDENTIARY HEARING SCHEDULED FOR 06/17/2005

@

8:30 AT THE MAINE

NOTICE TO PARTIES/COUNSEL STATE PRISON. 05/10/2005 HEARING - EVIDENTIARY HEARING NOTICE SENT ON 05/10/2005 06/21/2005 HEARING - EVIDENTIARY HEARING HELD ON 06/17/2005 @ 9:00 S KIRK STUDSTRUP , JUSTICE Attorney: JOSEPH STEINBERGER DA: ANDREW BENSON Reporter: MAUREEN BRADFORD Defendant Present in Court

PETITIONER'S BRIEF DUE IN 21 DAYS, STATE'S RESPONSE WITHIN 7 DAYS AFTER RECEIPT OF PETITIONER'S BRIEF 07/11/2005 OTHER FILING - OTHER DOCUMENT FILED ON 07/11/2005 PETITIONER'S FINAL ARGUMENT 07/13/2005 OTHER FILING - OTHER DOCUMENT FILED ON 07/13/2005

Page

5

of 6

Printed on: 09/19/2005

STATE OF MAINE AUGSC-CR-2002-00480 DOCKET RECORD STATE'S FINAL ARGUMENT 09/19/2005 FINDING - DENIED ENTERED BY COURT ON 09/16/2005

A TRUE COPY ATTEST : Clerk

Page

6

of 6

Printed on: 09/19/2005



Download KENcr-02-480.pdf

Maine Law