State v. Corliss
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 36
Docket:	Cum-97-148
Submitted 
 on Briefs:	November 10, 1997
Decided:	February 25, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.

STATE OF MAINE

v.

ALLEN CORLISS

LIPEZ, J.

	[¶1]  Allen Corliss appeals from a judgment entered in the Superior
Court (Cumberland County, Crowley, J.) following his jury-waived trial at
which he was found guilty of operating under the influence, Class C, in
violation of 29-A M.R.S.A. § 2411(5)(D).{1}  Corliss contends that the court
erred in granting the State's motion to amend the grand jury's indictment
to reflect the correct date of one of his three prior OUI convictions.  We
affirm the judgment.  

I.  

	[¶2]  On October 10, 1996, the Cumberland County Grand Jury
indicted Allen Corliss for operating under the influence, Class C, in violation
of 29-A M.R.S.A. § 2411.  The indictment read in pertinent part: 

	THE GRAND JURY CHARGES:  That on or about the Eighth
day of August 1996 in the Town of Freeport, County of
Cumberland and State of Maine the above named defendant
ALLEN CORLISS  did operate a motor vehicle while under the
influence of intoxicating liquor or drugs or while having 0.08%
or more by weight of alcohol in his blood; the said ALLEN
CORLISS having three or more convictions for Operating Under
the Influence Offenses within a ten-year period, namely, on July
20, 1986 in the Bath District Court, on March 20, 1987 in the
Cumberland County Superior Court and on November 20, 1989
in the Androscoggin County Superior Court.

	[¶3]  During his trial Corliss moved to dismiss the part of the
indictment charging a Class C offense because the date of the first offense
alleged, July 20, 1986, was more than ten years prior to the date of the
alleged current offense, August 8, 1996.  The State moved to amend the
indictment by replacing "July 20, 1986" with "July 20, 1989," arguing that
Corliss's certified driving record showed a prior conviction on July 20,
1989, in the Bath District Court and that Corliss had been in receipt of the
driving record since discovery was commenced. Corliss conceded that he
was not unfairly surprised by the State's reliance on the July 20, 1989,
conviction, and made no claim that his defense would be prejudiced by the
amendment.  The court granted the State's motion to amend. 
	[¶4]  The court entered a judgment convicting Corliss of Class C OUI
and sentenced him in accordance with 29-A M.R.S.A. § 2411(5)(D).  Corliss
filed an application to this Court to allow an appeal of his sentence pursuant
to Maine Rule of Criminal Procedure 40(b), which was denied.  This appeal
followed.

II.  

	[¶5]  Pursuant to Maine Rule of Criminal Procedure 7(e),{2} the State
may amend an indictment as to form.  Any substantive change requires
resubmission of the indictment to the grand jury.  See State v. Larrabee, 377
A.2d 463, 465 (Me. 1977); State v. Hathorne, 387 A.2d 9, 11 (Me. 1978)
(explaining that to amend the indictment in substance without resubmitting
it to the grand jury may violate Article I, Section 7 of the Maine
Constitution).  A substantive amendment is one that "change[s] the nature or
grade of the offense charged."  State v. Mottram, 155 Me. 394, 400, 156
A.2d 383, 387 (1959) (quotations omitted).  If the change in an indictment
does not alter any fact that must be proved, the amendment is formal.  See
Larrabee, 377 A.2d at 465.   
	[¶6]  The averment of time in an indictment is altogether formal,
unless the time itself is a legal constituent of the offense.  See Mottram, 155
Me. at 402, 156 A.2d at 387 (quotations omitted).  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, 316-317 (Me. 1990).  An indictment
must allege every element of the offense charged.  See State v. Weese, 662
A.2d 213, 214 (Me. 1995); cf. 15 M.R.S.A. § 757(1) (1980 & Supp. 1997)
("[A] prior conviction shall be specially alleged if the sentencing provision of
any crime requires that a present sentence be enhanced because the
defendant has been previously  convicted of a specified crime. . . ."). 
	[¶7]  In this case, the indictment against Corliss properly alleged that
"the said ALLEN CORLISS [has] three or more convictions for Operating
Under the Influence Offenses within a ten-year period . . . ."  Although the
State must prove at trial the exact dates of the prior convictions to
substantiate the general averment in the indictment, the exact dates need
not be set forth in the indictment.  See State v. Brooks, 656 A.2d 1205,
1207-08 (Me. 1995) (general averment as to the existence of the prior
convictions is sufficient, where averment adequately apprised defendant of
the act charged).  Thus, the indictment against Corliss, both before and after
the amendment, contained every element necessary to charge him with
Class C OUI in violation of section 2411.  Indeed, the original indictment
adequately charged Corliss with Class C OUI; the State's motion to amend
the indictment was unnecessary.  An amendment that relates solely to
surplusage, such as the exact dates of Corliss's prior convictions, is formal. 
See State v. Siviski, 663 A.2d 568, 570 (Me. 1995) (surplusage is language
which neither adds nor detracts from the charging instrument, and is not
necessary to define the conduct complained of as the crime) (citing 1
Cluchey & Seitzinger, Maine Criminal Practice § 7.10 at III-46).
	[¶8]  An amendment as to form is permissible if it results in no
prejudice to the defendant.  See Hathorne, 387 A.2d at 12.  Corliss
conceded at trial that the State's reliance on the July 20, 1989, conviction
did not unfairly surprise him, and he has made no claim that it unfairly
prejudiced his defense.  In these circumstances, we conclude that the court
did not err in granting the State's motion to amend the indictment to
reflect the correct date of Corliss's prior conviction.  
	The entry is:
		Judgment affirmed.
                                                           
Attorneys for State:

Stephanie Anderson, District Attorney
Julia A. Sheridan, Asst Dist. Atty.
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Matthew Pollack, Esq.
Pollack & Quirion, P.A.
P O Box 250
Topsham, ME 04086

FOOTNOTES******************************** {1} 29-A M.R.S.A. § 2411 (1996 & Supp. 1997) provides in pertinent part: 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 B. While having a blood-alcohol level of 0.08% or more. . . . 5. Penalties. The following minimum penalties apply and may not be suspended: 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 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 failed 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. {2} Maine Rule of Criminal Procedure 7(e) governs the amendment of indictments. The Rule provides in pertinent part: The court may permit the amendment of an indictment charging an offense other than a Class D or Class E crime at any time before verdict or finding if the amendment does not change the substance of the offense.