MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 60 Docket: And

- 17

- 319 Argued : March	7,	2018 Decided: April	26,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v. DANNY	L. ADAMS

MEAD,	J. [ ¶1] Danny	 L.	 Adams	 appeals	 from	 a	 judgment	 of	 conviction	 of manslaughter	 (Class	A), 17

- A	M.R.S.	 §	203(1)(A) (2017),	entered	by	 the	 trial court	(Androscoggin	County, MG	Kennedy,	J. )	following	his	unconditional	open guilty	 plea. 1 Adams	 contends	 that	 his	 plea	was	involuntary	 because	 he	was coerced,	in	violation	of	his	constitutional	rights	against	self

- incrimination, 2 to accept	the	truth	of	all	of	the	facts	recited	by	the	State	at	the	plea	hearing	held

1 An	unconditional	guilty	plea	is	tendered	when,	as	here,	a	defendant	does	not	reserve	the	right to	seek	appellate	review	of	a	specified	ruling	of	 the	court. See M.R.U.	Crim.	P.	11(a)(2) .		A	plea	is “open”	“ when	there	is	no	proposed	sentence	agreement	bet ween	the	State	and	the	defendant	and	the sentence	is	determined	by	the	court	after	argument	from	the	parties .” State	v.	Stevens ,	2017	ME	30, ¶	2	n.1,	156	A.3d	131 ; see	also	State	v.	Bean ,	2018	ME	58 , ¶	14,

--- A.3d

--- .

2 The	United	States	Constitution provides	that “[n]o	person	.	.	. shall	be	compelled	in	any	criminal case	 to	be	a	witness	against	himself ,” U.S.	Const.	amend.	V ;	the	Maine	Constitution	provides	that	a person	accused	 of	 a	 crime	 “ shall	not	 be	 compelled	 to	 furnish	 or	 give	 evidence	 against	 hi mself	 or herself, ” Me.	Const.	art.	I,	§	6

.2 pursuant	 to M.R.U.	 Crim.	 P. 11 .	 	 He	 further	 contends	 that	 he	 should	 not	 be required	to	show	cause	as	to	why	his	appeal	should	not	be	dismissed	pursuant

to State	v.	Huntley ,	676	A.2d	501	(Me. 1996),	and	its	progeny ,	which	hold	that	a defendant may	 not	 appeal	 from	 a	 conviction	 entered upon	 his	 plea	 of	 guilty except	 in	 certain	 circumstances .	 	 Adams	 did	 not	 move	 to	 withdraw	 his unconditional	plea before	the	court	imposed	the	sentence and	does	not	assert that	the	trial	court	lacked	jurisdiction	or	that	it	imposed	an	excess ive,	cruel,	or

un usual	 sentence. W e	 dismiss	 the	 appeal. See	 id. at	 503; State v. Plummer , 2008 ME	22,	¶	3,	939 A.2d 687.
I.		BACKGROUND [¶2 ] The	 relevant	 facts	 are	 procedural	 and	 are	 not	 disputed.	 	 In February 2015,	 Adams	was	 charged	 by	 indictment	with	 murder, 17

- A	M.R .S. § 201 (1)(B) (2017),	 and	 manslaughter	 (Class	 A), 17

- A	 M.R.S.	 §	 203 (1)(A), following	 the	 death	 of	 his	 infant	 son.	 	 Two	 attorneys	 were	 appointed	 to represent	 him.	 	 Following	 pretrial	 motions,	 a	 jury	 trial	 was	 sc heduled	 for February 17,	2017. [¶3 ] On	Feb ruary	8,	2017,	Adams	appeared	with	counsel	and	entered	an unconditional	 open	 guilty	 plea	 to	 the	 manslaughter	 count;	 the	 State	 later
dismissed	the	mur der	charge. See M.R.U. Crim. P.	11. At the	Rule	11	hearing,3 after	 Adams	 explicitly	 waived	 his	 right	 to	 re main	 silent	 and	 the	 court admonished	 him	 to	 “listen	 carefully,”	 the	 State	 recited	 the	 evidence	 that	 it expected	 to	 present	 at	 trial,	 which	 included	 Adams’s	 statements	 to	 police officers	that	numerous	bruises	on	the	child’s	forehead	and	around	his	mouth
lik ely	 resulted	 from	him	 (Adams)	 forcefully	putting	 the	baby’s	pacifier	in	his mouth	two	or	three	times,	holding	it	there	by	putting	the	palm	of	his	hand	on the	pacifier	and	spreading	his	fingers	across	the	child’s	face,	and	then	putting the	child	face	down	i n	his	crib	with	the	pacifier	inserted	and	holding him	down against	the	mattress. [¶4 ] Adams’s	 counsel	 told	 the	 court	 that	 the	 State’s	 recitation	 was consistent	 with	 the	 discovery.	 	 The	 court	 then	 engaged	 in	 a	 colloquy	 with
Adams: COURT:		And	do	you	have anything	that	you	would	like	to	correct about	what	was	just	said? ADAMS:		No.		No,	Your	Honor. Q:	 	 And	 have	 you	 had	 enough	 time	 to	 speak	 with	 your	 attorney about	this	matter? A:		Yes,	Your	Honor. Q:		Has	he	done	the	things	that	you	have	asked	him	to	do in	terms of representing you? A:		Yes,	Your	Honor.4
Q:		Are	you	satisfied	with	his	services? A:		Yes,	Your	Honor. Q:		Are	you	pleading	guilty	today	because	you	are	guilty? A:		Yes,	Your	Honor. The	court	found	that	the	plea	was	made	voluntarily	and accepted	it.		It	set	the matter	for	sentencing	following	its	receipt	of	sentencing	memoranda	from	the parties. [¶5 ] In	chambers	at	the	sentencing	hearing	almost	five	months	later,	the court	 shared	 the	 State’s	 concern	 that	 Adams’s	 sentencing	 memorandum di ffered	significantly	from	the	State’s	recitation	of	facts	at	the	Rule	11	hearing, principally	in	suggesting	that	the	bruises	on	the	baby’s	face	were	the	result	of
Adams’s	resuscitation	efforts	and	not	his	death

- producing	conduct.		Following
a	 discussion	 ab out	 the	 specific	 conduct	 for	 which	 Adams	 was	 accepting responsibility	 and	 whether	 his	 admitted	 conduct	 continued	 to	 support	 his guilty	 plea	 to	 a	 charge	 of	 manslaughter,	 the	 court	 recessed	 the	 chambers conference	so	that	Adams’s	attorneys	could	speak	to	him before	retu rning	for
further	discussions. [¶6 ] When	 the	 chambers	 conference	 resumed,	 Adams’s	 attorney	 said that	after	meeting	with	him,	“we	confirmed	again	 today	what	we	understood5 before	 today,	 that	Danny	Adams	is	 taking	responsibility	 for	causing	his son’s death.		He	indeed	has	pled	guilty	to	this	charge.		He	is	responsible	for	his	son’s death.		He	did	cause	his	son’s	death	.	.	.	as	he	agreed	to	the	facts	presented	in	the Rule	11	previously.	.	.	.	To	the	extent	that	[a	medical]	report	implies	.	.	.	in any kind	of	way	at	all	that	Danny	Adams’s	conduct	was	not	the	cause	of	the	child’s death,	then	we	would	reject	that	.	.	.	.”		After	confirming	with	defense	counsel that	Adams	wished	to	proceed	with	sentencing,	the	court	conven ed	a	hearing in	the	courtroom. [¶7 ] At	 that	 hearing,	 asserting	 that	 “[a]t	 the	 time	 of	 the	 Rule	 11,	 the defendant	admitted	to	the	following	facts,”	the	State	again	recited	that	Adams had	 inflicted	 the	 bruises	 on	 the	 child	 when	 he	 caused	 the	 child’s	 death, concluding	by	saying	that	“th ose	injuries,	contrary	to	the	defendant’s	claim	in his	sentencing	memo,	were	not	 the	result	of	resuscitative	efforts,”	but	rather “conduct	 that	 the	 defendant	 pled	 guilty	 [to].”	 	 The	 State	 pointed	 to	 Adams’s conduct	as	one	factor	in	support	of	its	recommend ed	sentence of	twenty

- five years	 to	 the	 Department	 of	 Corrections,	 with	 all	 but	 seventeen	 years suspended,	 and	 six	 years	 of	 probation .	 	 Defense	 counsel	 made	 an	 extensive presentation	 of	 mitigating	 facts,	 but	 acknowledged	 that	 Adams	 “was,	 as	 the
State	 has	 d escribed	 .	 .	 .	 completely	 negligent,	 completely	 reckless,”	 although6 “[h]e	didn’t	intend	to	cause	[the	child’s]	death.”		Addressing	the	court	directly, Adams	said,	“I	did	do	it.		I’m	not	denying	any	of	that.		I	take	full	responsibility
for	what	I	did.		Ever ything	I	did	that	night	and	t he	night	before	was	horrible.” [¶8 ] As	 it	 began	 its	 sentencing	 analysis	 the	 court	 asked	 rhetorically, “[W]hat	 is	 it	 that	 the	 defendant	 did?”	 and	 then	 outlined	 in	 detail	 its understanding	 of	 the	 evidence.	 	 After	 confirming	 its accuracy	 with	 defense counsel,	the	court	addressed	Adams: COURT:		Mr.	Adams,	at	the	time	you	entered	your	guilty	plea	to	the charge	of	manslaughter,	were	you	aware	that	was	the	information the	State	would	.	.	.	provide	to	the	Court? ADAMS:		Yes,	ma’am. Q:	 	Mr.	 Adams,	 having	 heard	 again	 the	 evidence	 the	 State	would present	if	this	matter	were	to	go	to	trial,	is	there	anything	that	you would	like	to	correct? A:		No,	ma’am. Q:		[D]id	anyone	make	any	threats	or	promises to	you to	get	you	to change	your	ple a	from	not	guilty	to	guilty? A:		No,	ma’am. Q:		[A]re	you	pleading	guilty	today	because	you	are	guilty? A:		Yes,	ma’am. Q:		And	having	pled	guilty,	do	you	wish	to	maintain	your	guilt	and go	forward	with	sentencing	today?7 A:		Yes,	ma’am. Q:		Are	you making	that	decision	voluntarily? A:		Yes,	ma’am. Q:		Meaning	that	it	is	of	your	own	free	will? A:		Yes,	ma’am. [¶9 ] The	 court	 completed	 its	 sentencing	 analysis,	 arriving	 at	 a	 basic sentence	of	eighteen	years;	a	maximum	sentence	of	twenty	years;	and a	final sentence	of	twenty	years’	imprisonment,	with	all	but	fifteen	years	suspended, and	six	years	of	probation. S ee 17

- A	M.R.S.	§	1252

- C (2017). [¶1 0 ] Adams	timely	appealed	and	filed	an	application	to	appeal	from	the sentence.		On	July	27,	2017,	citin g Huntley ,	676	A.2d	at	503, we ordered	Adams to	show	cause	within	 fourteen	days	as	 to	why	his	direct	appeal	 from	a	guilty plea	should	not	be	dismissed.		After	Adams	filed	a	response,	we	ordered	that the	 appeal	 would	 proceed	 in	 the	 usual	 course	 and	 directed	 the	 parties	 to
address	 in	 the ir	 briefs	 whether	 a	 criminal	 defendant	 has	 any	 constitutional, statutory,	or	rule

- based	right	to	appeal	from	a	conviction	following	a	guilty	plea where	 the	 defendant	 knows	 of	 no	 valid	 basis	 for	 such	 an	 appeal. 3 By	 order

3 We	also	directed	the	parties	to	address	the	question	of	whether	an	indigent	defendant	has	a right	to	the	appointment	o f	new	appellate	counsel to	review	the	record to determine	whether	any valid	basis	for	appeal following	a	guilty	plea	exists.8 dated	 August	 24,	 2017,	 the	 Sentence Review	 Panel	 denied	 Adams	 leav e	 to appeal	from	the	sentence.
II.		DISCUSSION [¶1 1 ] In Huntley ,	we	said	that [a] conviction	after	a	guilty	plea	involves	no	decision	by	th e	court regarding	the	defendant’ s	criminal	guilt	and	therefore	provides	no source	 of decisional	 error	 by	 the	 court	 regarding	 criminal	 guilt. No direct appeal	 pursuant	 to 15	 M.R.S.A.	 §	 2115	 (Supp.	 1995) [ 4 ] asserting	errors	in	the	determination	of	criminal	guilt	may	be	taken from	a	conviction	after	a	guilty	plea	(other	than	a	conditional	g uilty plea	 entered	 pursuant	 to	 M.R.	 Crim.	 P.	 11(a)(2) [ 5 ] ),	 except	 on grounds	of	jurisdiction	or	excessive,	cruel	or	unusual	punishment, because	 there	 is	 no	 decision	 by	 the	 court	 to	 appeal	 from. Challenges	 to	 a	 conviction	 after	 a	 guilty	 plea	 on	 grounds	 of involuntariness	of	the	plea,	lack	of	knowledgeability	on	the	part	of the	defendant	 regarding	 the	consequences of	his	plea,	ineffective assistance	 of	 counsel,	 misrepresentation,	 coercion	 or	 duress	 in securing	 the	 plea,	 the	 insanity	 of	 the	 pleader,	 or	 noncom pliance with	the	requirements	of	M.R.	Crim.	P.	11	are	collateral	and	may	be pursued	only	by	post

- conviction	review

.	.	.	. 676	A.2d	at	503; see State	v.	Gach ,	2006	ME	82,	¶	9,	901	A.2d	184	(same).		In this	case,	Adams	pleaded	guilty	unconditionally,	did	not	move	to	withdraw	his

4 The	statute	has	been	amended	twice	since Huntley was	decided;	neither	amendment	affects	this appeal. P.L.	 1999,	 ch.	 731 ,	 §	 ZZZ

- 17 (effective	 Jan.	 1,	 2001 ); P.L.	 2007,	 ch.	 475,	 §	 5 (effective June 30, 2008).

5 The substance	 of	 the current	 rule	 is	 identical	 to	 its	 predecessor. Compare M.R.U. Crim. P. 11(a)(2) with M.R. Crim. P.	11(a)(2)	(West	1996 ).9 plea, 6 and	does	not	contend	that	the	court	lacked	jurisdiction	or	that	it	imposed an	unconstitutional	sentence.		Accordingly,	his	di re ct	appeal	must	be	dismissed. [¶1 2 ] Huntley applies	even	when,	as	here,	a	defendant	contends	that	the

court violated	his	constitutional	rights	at	the	time	he	entered	a	guilty	plea. 7 In Plummer ,	considering	 the	defendant’s	contention	 that	 the	 trial	court violated his	due	process	rights	in	accepting	his	guilty	plea	and	imposing	sentence,	we
held	that Plummer	 alleges	 neither	 a	jurisdictional	infirmity,	 nor	 excessive, cruel,	 or	 unusual	 punishment.	 His	 guilty	 plea	 was	 entered unconditionally,	and	he	made	no	mo tion	to	withdraw	his	plea	prior to	 his	 sentencing.	 Plummer’ s	 contentions	 are	 thereby	 not preserved	 for	 appellate	 review,	 and	 Plummer	 is	 barred	 from pursuing	this	direct	appeal	of	his	conviction. 2008	ME	22,	¶¶	1,	3,	939	A.2d	687. See	also State	v.	Steven s ,	2017 ME	30,	¶¶ 1, 6, 156	A.3d	131	(applying Huntley analysis	to	defendant’s	claim	that	the	court	did not	 establish	 that	 his	 plea	 was	 voluntary;	 dismissing	 appeal); Gach , 2006 ME 82,	 ¶	 8

- 9,	 901	 A.2d	 184	 (applying Huntley analysis	 to	 a	 claim	 that
defendan t	“did	not	voluntarily,	knowingly,	and	intelligently	waive	his	right	to

6 When	the	court	offered	Adams	a	chance	to	withdraw	his	plea	at	the	sentencing	hearing,	asking him,	“[H] aving	pled	gu ilty,	do	you	wish	to	maintain	your	guilt	and	go	forward	with	sentencing	today? ” Adams	answered,	“Yes,	ma’am.”

7 This	 is	 distinct	 from	 an	 assertion	 that	 the	 statute	 a	 defendant	 is	 convicted	 of	 violating	 is unconstitutional;	 that	 claim	 is	 reviewable	 on	 dir ect	 appeal. Class	 v.	 United	 States ,	 583	 U.S.

--- , 138 S. Ct.	798,	802

- 03	(2018).		Adams	does	not	contend	that	17

- A	M.R.S.	§	203	(2017),	criminalizing manslaughter,	is	unconstitutional.10 counsel”;	 dismissing	 appeal).	 	 Adams’s	 remedy,	 if	 any,	 for	 his	 claim	 that	 the court	coerced	his	plea	through	self

- incrimination	by	compelling	him	to	accept
the	State’s	recitation	of	fa cts	in	toto	lies	in	the	post

- conviction	review	process. See	Huntley ,	676	A.2d	at	503	(“ Challenges	to	a	conviction	after	a	guilty	plea	on grounds	of	involuntariness	of	the	plea .	.	.	[or] coercion	or	duress	in	securing	the plea

.	.	. are	collateral	and	may be	pursued	only	by	post

- conviction	review .	.	.	.”); 15	M.R.S.	§§ 2121

- 2132 (2017). [¶1 3 ] Adams provides us	 no	 persuasive reason	 to	 depart	 from	 our long

- standing	 jurisprudence	 strictly	 limiting	 direct	 appeal	 following	 a	 guilty plea,	nor	are	we	persuaded that	a	show	cause	order	is	an	impermissible	method of	 requiring	 an	 appellant	 to	 make	 a	 prima	 facie	 demonstration	 that	 a	 direct appeal	following	a	guilty	plea	is	not	subject	to	dismissal. [¶1 4 ] Adams	asserts	that	an	appeal	in	the	usual	course,	potentiall y	with the	 assistance	 of	 “fresh	 eyes”	 or	 specialized	 appellate	 counsel, is	 always required	in	such	cases	in	order	to	preserve	a	defendant’s	rights. As	a	practical matter,	however,	if	one	of	the	rare	grounds	for	appeal	set	out	in Huntley exists

— i.e.,	 a	 lac k	 of	 jurisdiction	 in	 the	 trial	 court	 or	 a	 sentence	 imposing unconstitutional	 punishment

— then	 effective trial	 counsel would	 very	 likely11 recognize	 that	 issue. 8 A defendant	 need	 only identify the	 argument	 in	 his response	to	a	show	cause	order	for	his	appeal to	proceed	in	the	usual	course.		If trial	counsel	were	ineffective	in	failing	to	preserve	a	valid	ground	for	appeal	by failing	 to	 adequately	 respond	 to	 the	 show	 cause	 order,	 that	 defect	 could	 be corrected	 on	 post

- conviction	 review. See 15 M.R.S.	 §	 2130 (p roviding	 that	 a post
- conviction	court	may	“grant[]	the	right	to	take	an	appeal	from	the	criminal judgment”).		We	note	that	Adams	himself,	utilizing	our	established	procedure, has	received	a	full	review	of	his	arguments	on	appeal. 9 The	entry	is: Appeal dismissed.

8 Adams	correctly	notes	that	a	direct	appeal following	a	guilty	plea may also be taken	 from	an illegal	sentence ,	but	 that	is	so	only “if	a	constitutional	or	statutory	 violation	is	apparent	 from	 the record.” State	v.	Davenport ,	2016	ME	69,	¶	9,	138	A.3d	1205	(analyzing	a	defendant’s	direct	appeal following	a	guilty	plea) ; see	also Bean ,	2018	ME	58 , ¶	16,

--- A.3d

--- . No	facial	illegality	appears	on this	record.		Adams’s	bold	assertions	of	fact	in	his	brief	that	might	support	his	argument

— “ Defendant was	told	by	counsel	that	the	court	had	determined	that	defendant	was	requi red	to	admit	all	of	the	State’s incriminating	evidence.		Indeed,	the	fact	that	counsel	advised	defendant	he	had	no	right	to	insist	on	his version	of	events	heightens	the	effect	of	the	pressure	on	defendant	to	testify	involuntarily .”	(Emphasis added.)

— are	n o	more	than	bare	speculation,	as	the	record	is	devoid	of	any	mention	of	what	Adams and	his	trial	counsel	actually	discussed	during	any	private	conversations.		At	oral	argument,	Adams’s appellate	 counsel	 acknowledged	 that	 these	 asserted	 facts	 in	 the	 appella nt’s	 brief	 are	 actually speculative	“inferences.”		Accepting	such	“facts”	would	require	us	to	make	findings	based	on	the	kind of	evidence	 th at	would	be	developed	at	a	post

- conviction	hearing,	where	Adams	and	trial	counsel would	presumably	testify.		That	is a	clear rationale	for our requirement	that	a	sentencing	illegality be	“apparent	from	the	record”	before	it	will	be	considered	on	direct	appeal. Davenport ,	2016	ME	69, ¶	9,	138	A.3d	1205

.

9 At	oral	argument,	Adams	agreed	that	“in	this	case ,	everything	w orked	perfectly.”12 Rory	A.	McNamara,	Esq. (orally) ,	Drake	Law,	LLC,	Berwick,	for	appellant	Danny L.	Adams Janet	 T.	 Mills,	 Attorney	 General , and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen. (orally) ,	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Androscoggin	County	Superior	Court	docket	number	CR

- 2015

- 13 F OR C LERK R EFERENCE O NLY