MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 231 Docket: Ken

- 17

- 110 Argued : November	14,	2017 Decided: December	12,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN, HJELM, and HUMPHREY , JJ.

STATE	OF	MAINE

v. CORY	D.	KIBBE

PER	CURIAM [¶1] In	 2004,	 Cory	 D.	 Kibbe	 pleaded	 guilty to	 gross	 sexual	 assault (Class A), 17

- A M.R.S.	 § 253(1)(B)	 (2016) ,	 and unlawful	 sexual	 contact (Class C), 17

- A M.R.S.	 § 255

- A(1)(E)	 (2016)

. The Superior	 C ourt	 ( Kennebec County, Clifford,	J. )	sentenced Kibbe	to	twenty	years	in	prison	with	all	but	four years	suspended	and	eight	years	of	probation	for	the	gross	sexual	assault,	and to	four	years	in	prison,	to	run	concurrently,	for the	unlawful	sexual	contact. [¶2 ] Kibbe	served	his	sentence	and,	t hirteen	years	later,	i n	2017,	after	a testimonial	hearing,	 t he	court ( Nale,	J. ) ordered	Kibbe	 to	spend	 four	years	in prison	 after	 granting the	 State’s	 motion	 to	 revoke	 Kibbe’s	 probation	 on the grounds	that Kibbe failed	to report	to	his	probation	officer as	required on	two occasions	 and	 “walk [ed] in	 front	 of	 the	 Waterville	 public	 school.” We	 now2 consider	 the	 sufficiency	 of	 the	evidence	 suppor ting	 the	 court’s	 revocation	 of Kibbe’s	probation. 1 [¶3 ] As	 applies	 to	 this	 matter,	 probation	 may	 be	 revoked	 when	 “the alleged	 violation	 does	 not	 constitute	 a	 crime	 and	 the	 court	 finds	 by	 a preponderance	 of	 the	 evidence	 that	 the	 person [who	 is	 on	 probati on] has inexcusably	 failed	 to	 comply	 with	 a	 requirement	 imposed	 as	 a	 condition	 of probation.” 17

- A	M.R.S.	§	1206(6)	(2016) .		It	is	the	State’s	burden	to	establish
these	 elements. State	 v.	 James ,	 2002	 ME	 86,	 ¶	 9,	 797	 A.2d	 732 .	 	 Kibbe challenges	only	the	d etermination	that	he	was	still	on	probation	at	the	time	of his	alleged	probation violations. [¶4 ] Notwithstanding	the	deferential	standard	by	which	we	review	the sufficiency	of	the	evidence	supporting such a	factual	finding

— clear	error

— we conclude	in	 this	matter	 that	 the	State	 failed	 to	meet	its	 burden. See State	 v.
Palmer ,	 2016	 ME	 120,	 ¶	 11,	 145	 A.3d	 561. O ur	 conclusion is	 perhaps	 best demonstrated	by	a summar y	of	what	occurred	during the	hearing. [¶5 ] The	 State	 presented	 one	 witness	 at	 the	 hearing

— Kibbe’s probation	 officer. On	 direct examination	 by	 the	 State , the	 probation	 officer

1 We	granted	Kibbe	a	certificate	of	probable	cause	on	his	petition	seeking	discretionary	review of	 the	 court’s	 decision. See 17

- A M.R.S.	 § 1207(1)	 (2016) ;	 M.R.	 App.	 P.	 19(a)(ii)	 (Tower	 20 16); M.R. App.	P.	19(a)(2)(B).3 testified	 that	 Kibbe	 was	 seen	 in	 front	 of	 a	 Wat erville	 public	 school	 on August 30,	 2016, at	 a	 time	when	 school	was	 not	in session, in	 violation	 of	 a probation	 condition	 that	 he	 not	 be	within	 five	 hundred	 feet	 of	a	 school,	and that	 Kibbe	 had	 failed	 to	 report	 to	 her	 as	 required	 on	 September	 22,	 2016; September	 26,	 2016;	 and	 October	 6,	 2016,	 for	 which	 he	 was	 arrested	 on
October 6,	2016. The	State’s	attorney	did	not	ask the	probation	officer during
direct examination if	 Kibbe	 was	 still	 on	 probation	 on	 these	 dates,	 and the probation	officer did	not	testify on	that	issue

. [¶6 ] On	cross

- examination,	Kibbe’s	attorney	questioned the probation
officer regarding whether	Kibbe	was	 on	probation	at	 the	 time	 of	 the	alleged
violations: Q So	 I	 have	 a	 date	 of	 December	 16th	 of	 2007	 of	 Mr.	 Kibbe’s release	 that	 was	 provided	 to	 me	 by	 the	 Department	 of Corrections.		But	is	it	correct	 that	you’re not	sure	when	he was	originally	released?
A I	don’t	have	that	date	off	the	top	of	my	head. Q So	you

-- as	you	sit	here	today,	you	believe	that	Mr.	Kibbe	is still	on	probation	though,	correct?
A Yes. Q And	he’s

-- was	subject	to	eight	years	of probation?
A That’s	possible.4 Q You’re	not	sure	how	many	years	of	probation?
A I	don’t.		I	only	have	a	hunch. Q It’s	eight	years.		I	think	we	can	probably	agree	that	it’s	eight years.		Can	we	agree	that	it’s	eight	years	of	probation?
A Yes.
When	 aske d	 when	 Kibbe	 was	 released	 from	 prison	 after	 serving	 the unsuspended	 portion	 of	 his	 sentence, the	 probation	 officer testified,	 “I

-- I don’t	have	it	 off	 the	 top	 of	my	head.	 	No,	 I	didn’t	 bring	 that	with	me.” After Kibbe’s	 attorney	 suggested	 that	 Kibbe was released	 from	 prison on December 16,	 2007, the	 probation	 officer agreed	 that his	 probation commenced	 on	 December	 17,	 2007,	 and	 that,	 barring	 other	 factors,	 Kibbe’s eight

- year	probation	term therefore would	have	expired	in	December	of	2015,
several	months	b efore	the	dates	of	the	alleged	probation	violations : A .	.	.	.		His	probation	did	start	December	17 th ,	2007.
THE	COURT: Probation	would	begin	when?
THE	WITNESS: December	17 th ,	2007.
THE	COURT: December	17th?
THE	WITNESS: December	17th,	2007.
THE	COURT: Thank	you.		And	 that	would	run	 for	eight years?5 THE	WITNESS: Yes. [¶7 ] Although the	probation	officer testified	on	cross

- examination that Kibbe	was	subject	 to prior	partial probation revocations	of 440 day s and	six months, she also	 testified	 that	 she was not	 sure how	long	Kibbe’s probation
was	tolled	while he	served	time	on	those prior revocations,	or	whether	and	to what	extent	he	received	good	time	credits that	would	reduce	the	tolled	period

. See 17

- A M.R.S.	 § § 1206(7

- A) , 1253(8)(A),	 (D) (2016)

. The probation	 officer agreed	 that	 good	 time	 credits	 would	 affect	 the	 probation	 tolling	 dates,	 but when	Kibbe’s	attorney	inquired,	“The	problem	is,	you’re	not	sure	when	it	was tolled	for	those,	correct?” the	probation	officer answered,	“I	don’t	have	that	on

me, no.” When	asked,	 “So	at	 this	 point,	 you	 don’t	actually	 have	any	 records with	 you	 for	 the	 Court	 to	 show	 that	 Mr.	 Ki bbe	 was	 on	 probation	 on
October 6th?” the	probation	officer responded,	“No,	I	don’t	have	that	with	me. I’m	sure	I	can	make	a	phone	call	and get	all	the	tolling	dates.” [¶8 ] On	 redirect examination , the	 probation	 officer testified	 that Kibbe’s	 prior	 probation	 revocations	 would	 have	 extended	 his	 probationary period	by	nineteen	months	from	the	initial	end	of	his	probation	in	December of	 2015, and	 that	 she	 did	 not	 receive	 a	 notification	 from	 the Department	 of Corrections	flagging	system informing	her	that	Kibbe’s	probation	had	ended

.6 [¶9 ] On	recross

- examination ,	Kibbe’s	attorney	inquired	further	into	the effect	of	the	prior	probation revocations: Q This	whole	tolling,	I	mean,	you	were	led	through	a	bunch	of questions	 here	 on	 tolling	 but	 the	 bottom	 line	 is,	 you mentioned	 440	 days.	 	 You	 don’t	 know	 that	 Mr.	 Kibbe	 was actually

-- his	probation	was	tolled	for	440	days,	correct?
A No.		I	ca n	probably	get	some	dates,	if	you’d	like. Q But	 for	 all	 you	 know	 here	 today, he could	 have	 been sentenced	 to	 440	 days,	 got	 a	 significant	 amount	 of	 good time	and	been	released	long	before	that	440	days,	correct?
A I	don’t	know	what	the	good	time	would	h ave	been	on	it.
The	State	rested without	offering	any	additional	evidence

. 2 [¶1 0 ] In	short,	t he record	makes	clear	that	the State’s	single	witness

— Kibbe’s	probation	officer

— was un able	 to	 testify with any degree	of	certainty that	 Kibbe	 was	 still	 on	 probation	 on	 October	 6,	 2016.	 	 She	 had	 neither knowledge	 of	 nor	 information	 about	 the	 actual	 dates	 of	 Kibbe’s	 probation

. 3

2 While	it	was	considering	what dispo sition to	impose	for	the	probation	violation,	the	court	took a	recess,	after	which	the	State’s	attorney	indicated,	“We’ve	also	confirmed	with	the	Department	of Corrections	 that	 [Kibbe]	 would,	 barring	 any	 further	 time	 in,	 remain	 on	 probation	 through Septemb er	of	next	year.” To	the	extent that such	vague	information	could	have	aided	the	court in its	 findings,	 the	 court	 had	 already	 found	 that	 Kibbe	 violated	 his	 probation	 by	 the	 time	 the	 State purported	 to	 obtain	 confirmation	 from	 the	 Department	 of	 Corrections , and	 in	 any	 event, the statements	of	an	attorney	are	not	evidence, see State	v.	Begin ,	2015	ME	86,	¶	28, 120 A.3d	97

.
3 Moreover,	we	cannot	be	certain	 that	 the	court	correctly	assigned	 the	burden	of	proof	 to	 the State	 throughout	 the	 hearing. See State v.	James ,	 2002	 ME	 86,	 ¶	 9,	 797	 A.2d	 732 .	 	 After Kibbe’s attorney	asked the	probation	officer on	cross - examination,	“Do	you	have	any	evidence	that	[Kibbe] was	on	probation	at	that	time?”	the	court	inquired	of	Kibbe’s	attorney,	“Do	you	have	any	evidence that he	was	not	 on	probation?” Later,	after	Kibbe’s	attorney	 challenged	 during	 closing	argument7 See 17

- A M.R.S.	 § 1253(8)(A),	 (D)

. It	 was	 the	 State’s	 burden	 to	 prove,	 by	 a preponderance	of	the	evidence,	that	Kibbe	was	on	probation	at	the	time	of	his alleged	 probation	 violations ;	 the	 State	 failed	 to	 meet	 that	 burden

. 4 S ee 17

- A M.R.S.	§	1206(6); James ,	2002 ME	86,	¶ 9,	797	A.2d	732

. Accordingly ,	we vacate	the	judgment	revoking Kibbe’s probation. 5 The	entry	is: Judgment vacated

. Remanded	 for	 entry	 of	 an order	 denying	 the	 State’s probation	 revocation motion

.

the	State’s	proof	that	Kibbe	was	on	probation	at	the	relevant	time,	the	court	stated,	“How	do	I	know he	wasn’t?		See,	that’s	the

-- I	think	we’re	taking

-- looking at	this	the	wrong	way,	in	my	eyes.		I’m here	and	 I’m

-- someone	needs	 to	convince	me	 that	he	is

-- was	not	on	probation.” When	Kibbe’s attorney	 asked,	 “Well,	 Your	 Honor,	 are	 you	 suggesting	 that	 the	 defe ndant	 has	 the	 burden	 of proof

-- , ”	the	court	stated, “I’m	not	suggesting	that.		I’m	not	suggesting	that	one	bit.		I’m	saying,	it’s [the	State’s]	burden.		And	what	I’ve	heard	from	the	district	attorney’s	office,	I’m	convinced	that	he was	on	probation.”

4 To	 prevent	 such failures in	 calculating	 probationar y	 periods	in	 future	matters

— parti cularly those	in	which	there	is	a	serious	question	as	to	whether	the	probationer	is	still	on	probation

— the State	and	the	State’s	witness must	be	prepared	to	establish	that	probation	is,	in	 fact,	still	in	effect. The better practice	 is	 for	 the	 State	 to file	 documentation	 with	 its motion	 to	 revoke	 probation detailing	the	relevant	dates

.
5 We	decline	 the parties’ alternative	request	 to	remand	 the	matter	 for	a	new	hearing. Having failed	to	meet	its	burden, there	is	no	basis upon	which to	allow the	State	a	second	attempt	to	prove those	facts.8 Kevin P.	Sullivan,	Esq. (orally) ,	Sullivan	Law,	P.C.,	Augusta,	for	appellant	Cory D. Kibbe Maeghan	Maloney,	District	Attorney,	and	Michael	H.	Madigan,	Asst.	Dist.	Atty. (orally) ,	Prosecutorial	District No. Four,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Superior	Court	docket	number CR

- 2004

- 357 F OR C LERK R EFERENCE O NLY