State of Maine v. Gerald B. Kennedy, 136 A.3d 357

Background

Kennedy had prior OUI convictions (2008 with counsel; an additional older OUI). In 2013 he was charged again with OUI and arraigned, viewed a rights video, and acknowledged understanding his right to counsel and intention to retain a lawyer. The arraignment judge misstated the mandatory minimum jail term.
A dispositional conference occurred (unrecorded); later Kennedy appeared apparently unrepresented and entered a guilty plea at a brief on-the-record hearing. The plea transcript did not mention waiver of counsel.
The 2013 guilty plea was later used to enhance a 2014 OUI charge to a Class C felony. Kennedy moved to strike the 2013 conviction, claiming it was obtained in violation of his Sixth Amendment right to counsel.
At the August 2014 hearing on the motion, Kennedy presented transcripts/audio of the 2013 arraignment and plea but offered no testimony or other evidence about communications with counsel before the plea or what occurred at the dispositional conference.
The trial court denied the motion, finding Kennedy bore the burden on collateral attack to prove he did not competently and intelligently waive counsel and that he failed to meet that burden; Kennedy reserved the right to appeal and challenged denial after entering a conditional guilty plea in the 2014 case.

Issues

Issue	Kennedy's Argument	State's Argument	Held
Whether a 2013 uncounseled guilty plea may be collaterally attacked for lack of Sixth Amendment counsel	The 2013 plea was not shown to include a valid waiver; absence of on-the-record waiver in plea transcript requires voiding the conviction used for enhancement	Defendant bears burden to prove he did not knowingly and intelligently waive right to counsel; record (arraignment acknowledgement, plea after dispositional conference) supports inference of waiver	Court held defendant failed to meet burden; denied collateral attack and affirmed conviction enhancement
Whether the arraignment and plea record sufficed to infer an implied waiver of counsel	The plea record’s silence on waiver and misstatement of mandatory minimum preclude inferring waiver	Arraignment showed defendant knew right to counsel and intended to hire counsel; silence about dispositional conference and plea supports defendant’s voluntary choice to proceed pro se	Court held the total record supported presumption of waiver absence not rebutted by defendant; burden not met
Whether trial court constitutionally had to elicit express waiver at plea hearing	Argued an express on-the-record waiver was required because defendant pleaded without counsel	Court need not require a prophylactic Miranda-like warning; implied waiver can suffice if defendant fails to prove otherwise	Held: no constitutional requirement for express on-the-record waiver in these circumstances; defendant’s failure to prove lack of waiver is dispositive
Whether misstatement of mandatory minimum at arraignment invalidates any implied waiver	Pointed to the arraignment’s incorrect sentencing information as undermining Tovar factors for implied waiver	Even if arraignment misstated penalty, defendant’s later conduct and lack of evidence rebutting waiver permits using conviction	Court rejected that misstatement alone showed lack of waiver absent supporting evidence from defendant

Key Cases Cited

Iowa v. Tovar, 541 U.S. 77 (Sup. Ct.) (standards for implied waiver of right to counsel at plea)
Parke v. Raley, 506 U.S. 20 (Sup. Ct.) (burden on defendant attacking prior uncounseled conviction)
State v. Johnson, 38 A.3d 1270 (Me. 2012) (collateral attack exception for denial of counsel)
United States v. Gray, 177 F.3d 86 (1st Cir.) (defendant’s silence and lack of testimony defeats collateral attack on uncounseled conviction)
United States v. Sanchez, 354 F.3d 70 (1st Cir.) (burden shifts to defendant to show prior conviction is constitutionally infirm)
State v. Robbins, 37 A.3d 294 (Me. 2012) (presumption of regularity for past proceedings)
Johnson v. Zerbst, 304 U.S. 458 (Sup. Ct.) (presumption against waiver of Sixth Amendment rights)
State v. Watson, 900 A.2d 702 (Me. 2006) (requirements for waiver when defendant is unrepresented at trial)