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Harris v. State
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MAINE SUPREME JUDICIAL COURT							Reporter of Decisions
Decision:	1999 ME 61
Docket: 	Lin-98-10
Argued:	January 7, 1999
Decided:	April 23, l999

Majority:  	WATHEN, C.J., and CLIFFORD, RUDMAN, and CALKINS, JJ.
Dissent:  	DANA, and ALEXANDER, JJ.


	[¶1]  Robert Lee Harris Jr. appeals from the decision entered in the
Superior Court (Lincoln County, Brodrick, J.) dismissing his post-conviction
petition with prejudice.  Harris contends the court erred in dismissing his
petition.  We disagree and affirm the judgment.
	[¶2]  In 1991, Harris was convicted of rape after a jury trial in Lincoln
County.  In 1992, Harris pled guilty to a second count of rape in Knox
County.  He appealed his convictions.  His appeals were consolidated and the
judgments entered in Knox and Lincoln Counties were affirmed by this court
in a memorandum of decision.  State v. Harris, No. 6180 (Me. May 15, 1992)
(mem.).  On July 30, 1993, Harris filed separate post-conviction petitions. 
The court ordered Harris's claims of ineffective assistance of counsel to be
assigned to the regular criminal docket in Knox and Lincoln Counties,
respectively.  The cases were not consolidated.  The docket entries in both
cases indicate sporadic activity, and the Lincoln County docket reflects an
entry on February 9, 1994:
Oral motion made by petitioner Robert Harris for the court to
take no further action on this or Knox County matters until
notified to do so by petitioner.  GRANTED.
	[¶3]  On August 18, 1995, the State filed a motion to dismiss both the
Knox and Lincoln County post-conviction petitions pursuant to M.R. Crim.
P. 70(e).{1}  On November 7, 1995, the Lincoln County Superior Court held a
hearing on the motion, and court-appointed counsel represented Harris at
the hearing.  The court (Brodrick, J.), following the mandate of Rule 70(e),
dismissed Harris's petitions, stating:
I find that Mr. Harris requested that nothing take place until he
told the court to have something take place, I find that nothing
has happened for more than a year and I find no cause good or
otherwise why nothing has happened for more than a year, and
the motion to dismiss on both cases is granted.  
	[¶4]  Subsequent to the court's dismissal of his petitions, Harris filed
motions for the appointment of new counsel.  After the appointment of such
counsel on September 5, 1997, Harris filed a motion to restore his petitions
for post-conviction review to the docket.  The court (Brodrick, J.) denied
the petitions after a hearing on November 24, 1997.
	[¶5]  Although M.R. Crim. P. 76(c){2} provides that an appeal must be
taken within 20 days of a court's decision, it was not until January 5, 1998
that Harris filed a notice of appeal from the judgment pursuant to
15 M.R.S.A. § 2131 (Supp. 1998).{3}  On April 24, 1998, we issued an order
granting a certificate of probable cause.  That order provided:
	WHEREAS, pursuant to 15 M.R.S.A. § 2131, [Harris] has
filed a notice of appeal from the judgment entered in the
Superior Court in the above-entitled post-conviction review
proceeding, which notice by law constitutes a request for a
certificate of probable cause; and

	WHEREAS, [Harris] was unaware of the dismissal of his
petition until after the appeal period had elapsed because of
circumstances outside of [his] control;

	NOW, THEREFORE, it is ORDERED that the time to file an
appeal from the judgment in the above-entitled post-conviction
review proceeding should be and hereby is extended for good
cause shown.  [Harris] is ORDERED to file an appeal from the
November 7, 1995 judgment of the Superior Court by
May 26, 1998.  It is FURTHER ORDERED that a copy of this
order shall constitute the certificate of probable cause required
under 15 M.R.S.A. § 2131.  The appeal shall proceed in
accordance with the provision of Rules 76 through 78 of the
Maine Rules of Criminal Procedure.
	[¶6]  Thus, we limited our review to an appeal from the
November 7, 1995 judgment of the Superior Court which dismissed Harris's
petitions for post-conviction review.  By its plain language, M.R. Crim.
P. 70(e) mandates the assigned justice to dismiss a petition for want of
prosecution absent a showing of good cause.  At the November 7, 1995
hearing, Harris offered no "good cause" as to why the court should not
dismiss the petitions.  In fact, the failure to prosecute was attributable, at
least in part, to Harris's own inactivity after asking the court to take no
further action until he notified the court to do so.
	[¶7]  Harris brought his petitions pursuant to Chapter 305-A of
Title 15 of the Maine Revised Statutes Annotated.  This chapter provides "a
comprehensive and . . . exclusive method of review of . . . criminal
judgments."  15 M.R.S.A. § 2122 (Supp. 1998).
	[¶8]  Chapter 305-A specifically authorizes the Supreme Judicial Court
to adopt rules governing procedures in post-conviction review cases.  See
15 M.R.S.A. § 2129(5) (Supp. 1998).  In 1981, we adopted Rules 65-78 of
the Maine Rules of Criminal Procedure, to govern post-conviction review
proceedings.  See M.R. Crim. P. 65-78.  The statute and rules we
promulgated are designed to afford speedy relief in post-conviction actions. 
M.R. Crim. P. 70(e) mandates a dismissal of the proceeding unless the
petitioner establishes good cause for delay.  Although M.R. Crim. P. 70(e)
affords the petitioner an opportunity to make a showing of good cause, the
rule requires the dismissal of the action in the absence of such a showing,
even under circumstances in which dismissal might seem unfair to the
petitioner.  The Legislature in enacting the statute, and we in adopting the
applicable rules, sought to provide an efficient procedure for the review of
criminal convictions and to bring finality to criminal prosecutions.
	The entry is:
					Judgment affirmed.

DANA, J., with whom ALEXANDER, J., joins, dissenting. [¶9] I respectfully dissent. The history of this case demonstrates that through the neglect of his court-appointed lawyers Harris was utterly deprived of an adequate opportunity to present his post-conviction claims and has been, therefore, deprived of his right to post-conviction review. The statutory remedy of post-conviction review, Title 15 M.R.S.A. §§ 2121- 32, was intended to fully implement and replace the constitutional right of post-conviction habeas corpus, 15 M.R.S.A. § 2122. If the statutory remedy has been lost by the incompetence and negligence of the lawyers the court system appointed, I would give him his constitutional remedy, the writ of habeas corpus. Me. Const. art. I, § 10.
Attorney for the Defendant: John M.R. Paterson, Esq. (orally) Bernstein, Shur, Sawyer & Nelson 100 Middle St. West Tower P.O. Box 9729 Portland, Maine 04104 Attorneys for the State: Geoffrey A. Rushlau, District Attorney (orally) Patricia A. Mador, Asst. Dist. Atty. Lincoln County Courthouse 32 High St. Wiscasset, Maine 04578
FOOTNOTES******************************** {1} . Rule 70(e) provides: (e) Dismissal of Petition for Failure to Prosecute. The assigned justice, on his or her own initiative or on motion of the respondent, after notice to the parties, and in the absence of a showing of good cause to the contrary by the petitioner, shall dismiss a petition for want of prosecution at any time more than one year after the last docket entry showing any action taken therein by the petitioner other than a motion for a continuance. Unless the assigned justice in the order for dismissal otherwise specifies, such dismissal shall operate as an adjudication upon the merits. M.R. Crim. P. 70(e) (emphasis added). {2} . Rule 76(c) provides: RULE 76. REVIEW OF FINAL JUDGMENT BY THE LAW COURT . . . . (c) Time for Taking Appeal. The time within which an appeal may be taken shall be 20 days from the entry of the judgment making final disposition on the docket, except that, upon a showing of excusable neglect, the assigned justice may, before or after the time has expired, with or without motion and notice, extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed. M.R. Crim. P. 76(c) (emphasis added). {3} . Section 2131 of Title 15 provides, in pertinent part: § 2131. Review of final judgment A final judgment entered under section 2130 may be reviewed by the Law Court. 1. Appeal by petitioner. An appeal by the petitioner may not proceed unless the Law Court issues a certificate of probable cause. The filing of the notice of appeal shall be deemed to constitute a request for a certificate. The clerk of the Superior Court, upon receipt of a notice of appeal, shall forward to the Law Court the complete record of the proceedings. The record so forwarded shall be returned to the clerk of the Superior Court with the order of the Law Court. Denial of the certificate constitutes finality of the proceedings. . . . . 3. Procedure on appeal. The time for appeal and the manner of taking an appeal shall be as the Supreme Judicial Court shall by rule provide. 15 M.R.S.A. § 2131 (Supp. 1998).