MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 109 Docket: Cum

- 17

- 474 Argued : May	16,	2018 Decided: July	26,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , and	HJELM , JJ.

STATE	OF	MAINE

v. EZRA	LEBLANC

- SIMPSON
ALEXANDER,	J. [¶1] This	 appeal	 presents	 the	 question	 of	 whether	 a	 person	 who	 has conditions	of	release	set	by	a	judicial	officer	can	be	convicted	of	violation	of	a condition	of	release, 15	M.R.S.	§	1092	(1)(B)	(2017) ,	for	acts	committed	while in	 jail	 after	 not	 securing release	 on	 bail.	 	 The	 Bail	 Code specifies	 that “[a] condition	 of	 release	 takes	 effect	 and	 is	 fully	 enforceable	 as	 of	 the	 time	 the judicial	officer	sets	the	condition .	.	.	.” 15	M.R.S.	§	1026(7)	(2017)

. The	Bail Code also	requires	that	the	judicial	offic er	shall provide	the	defendant	with	a written	statement	of	the	conditions	of	release, 15	M.R.S.	§ 1026(5)(A) (2017) , and advise	the	defendant of	“[t]he	penalties	for	and	consequences	of	v iolating a	condition	of	release, ” 15	M.R.S. § 1026(5)(B)(2) (2017)

.2 [¶2 ] Ezra	LeBlanc

- Simpson	appeals	 from	a	judgment of	conviction	 for twelve	 counts	 of	 violating	 a	 condition	 of	 release	 (Class C), 15	 M.R.S. § 1092(1)(B) ,	 entered	 in	 the	 Unified	 Criminal	 Docket ( Cumberland	 County, Mills,	J. ) following	a	bench	trial.		LeBlanc

- Simpson	challenges	the	application	of conditions	of	release	to	him	while	he	remained incarcerated

. He	also	contends that	he	was	not	provided with	adequate notice	of	the	conditions	of release	or of the	penalties	for	violat ing condition s of	release	while	he	remained	incarcerated , as	required	by 15	M.R.S.	§	1026(5)	(2017)

. 1 [¶3 ]	 	 Because	 the	 State	 prese nted	 insufficient	 evidence	 that LeBlanc

- Simpson	 was	 provid ed	 with notice	 of	 the	 conditions	 of	 release applicable	to	him while	he	was	in	jail ,	we	must	vacate	the	judgment.
I. CASE	HISTORY [¶4 ] Viewing	 the	evidence	in	 the	light	most	 f avorable	 to	 the	State,	 the trial court could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	 doubt. State	v.	Beckwith ,	2015	ME	72,	¶ 10,	117	A.3d	1049

. [¶5 ] On	October	20,	2016,	LeBlanc

- Simpson	was	arrested	and	charged with	 reckless	 conduct	 with	 a	 dangerous	 weapon	 (Class	 C), 17

- A	 M.R.S.

1 LeBlanc

- Simpson’s	remaining	contention

— that	his	phone	calls	from	jail	we re	protected	by	both the	United	States	and	Maine	Constitutions

— is not	persuasive and	we	do	not	discuss	it	further.3 § § 211(1) , 1252(4)	 (2017) ,	 criminal	 threatening	 with	 a	 dangerous	 weapon (Class	C), 17

- A	M.R.S.	§ § 209(1) ,	1252(4)	(2017),	and	two	counts	of	violating	a condition	 of	 release	 (Class	 E), 15	 M.R.S.	 §	 1092(1)(A)	 (2017)

. On October 21, 2016, the	State filed	a	notice	joining LeBlanc

- Simpson’s	case with	a case	 against	 another	 person, making that	 person	 a co - defendant	 with LeBlanc

- Simpson

. See M.R.U.	Crim.	P.	8(b). [¶6 ] LeBlanc

- Simpson	 made	 his	 initial appearance	 in	 court	 on October 21,	2016.		Cash	bail	was	set	by	the	court	at	$10,000	with	conditions of release .		The	conditions of release provided	that LeBlanc

- Simpson	shall	(1)	not use	 any	 alcoholic	 beverages	 or	 illegal	 drugs,	 (2)	 not	 possess	 any	 alcoholic beverages	or	illegal	drugs,	(3)	not	possess	any	dangerous	weapons,	including, but	not	limited	to,	firearms,	(4)	submit	to	searches	of his	person,	veh icle	and residence ,	and,	if	applicable,	to	chemical	tests	at	any	time	without	articulable suspicion	or	probable	cause,	and	(5)	have	no	direc t	or	indirect	contact	with	the

co - defendant

. [¶7 ] The	conditions	of	release	form	was	signed	by	the judge	but was	not signed	 by	 LeBlanc

- Simpson. The	 record	 from	 the	 trial	 does	 not	 include	 a transcript	of	the	initial	appearance	hearing	or	any	other	evidence	addressing whether	or	not,	at	that	hearing,	the	judge	specifically	advised	LeBlanc

- Simpson4 of	 the	 condition s	 of	 release	 or ,	 as	 required	 by	 15	 M.R.S.	 §	 1026(5)(B)(2),	 of “[ t ] he penalties	for	and	consequences	of	violating	a	condition of	release

.	.	. . ” [¶8 ] LeBlanc

- Simpson	 did	 not	 post	 the	 required	 $10, 000	 bail and remained	 in	 the	 Cumberland	 County Jail .	 	 Be tween	 November	 7,	 2016 , and December 12,	 2016,	 while	 he remained	 in	 jail,	 LeBlanc

- Simpson	 made
numerous	te lephone	calls	to the co - defendant

. [¶9 ] On	 April	 7,	 2017,	 the	 Cumberland	 County	 grand	 jury	 returned	 a
tw elve

- count	indictment	against LeBlanc

- Simpson alleging twelve	instances	of telephone contact	 with the	 co

- defendant ,	 constituting violations	 of	 his conditions	of	release	pursuant	to 15	M.R.S.	§	1092(1)(B)

. Pursuant	to	M.R. U. Crim.	P.	23(a), LeBlanc

- Simpson	waived	his	right	to	a	jur y	tr ial	and	opted	for	a trial	before	a ju dge. [¶1 0 ] A two
- day bench	trial	was	held in	October	2017. During	the	trial, the	State ’s	evidence	included certified	copies	of (i) the	docket entries ,	showing LeBlanc

- Simpson ’s	initial	appearance	in	court on	October	21,	2016 , and (ii) the conditions	of	release	form	signed	by	the	judge at	that	proceeding

. The	evidence at	 trial	 did	 not	 include	 the	 transcript	 or	 recording	 of	 the	 initial	 appearance hearing	 or	 any	 document	 or	 testimony indicating	 that	 LeBlanc

- Simpson	was5 advised	of,	made	aware	of,	or	acknowledged	any	of	the	conditions	of	release	or the	consequences	of	violation	of	any	of	the	conditions	of	release. [¶1 1 ] The	State	did	enter in evidence recordings	of phone	calls	made	by LeBlanc

- Simpson	and played	some segments	of	the	relevant	calls	for	the	court. The	 State	 also presented	 evidence	identifying	 LeBlanc

- Simpson	 as	 the	 caller and	the	co

- defendant	as	the	person	receiving the	telephone	calls. [¶1 2 ] During one	 of	 the	 calls	 played	 for	 the court , the	 conversation between LeBlanc

- Simpson	and	the	co

- defendant suggested that both	knew they

were not	supposed	to	be	talking	to	one	another:
Co

- defendant :	“You	should	use	somebody	else’s	to	call.	.	.	.” LeBlanc

- Simpson:	“As	long as	we	keep	it	relatively discre e t here,	I don’t	have	a	lot	of	options,	I	can’t	really	be	put in	double	jail”
Co

- defendant : “Well	I	can” [¶1 3 ] LeBlanc

- Simpson	was	found	guilty	of	all	twelve	counts	of	violating a	 condition	 of	 release by having	 contact	 with his	 co

- defendant

. The court ’s findings	 were based	 on	 the	 docket	 entry and	 conditions	 of	 release	 form showing	 that	 LeBlanc

- Simpson	 appeared	 personally	 before	 the	 court	 f o r	 his initial	appearance	and	bail	was	set	at	$10,000	with	conditions.		The	court also found that	 the conditions of	release were	in	effect	at	 the	 times	 the	violations6 occurred.		The	court acknowledged that	the	phone	calls	were	not	“threa tening in	any	way”	towards	the	co

- defendant but	were	merely	about	“someone	who	is in	 jail	 and	 who’s	 not	 enjoying	 himself .	 	 And	 she	 was	 someone	 to	 talk	 to, regardless	of	the	fact	that	he	was not	supposed	to	talk	to	her.” [¶1 4 ] LeBlanc

- Simpson	was	sentenced	to concurrent	ten
- month periods of	incarceration on	each	of	the	twelve	counts	of	violating	a	condition	of	release , to be	served	concurrently	with	his	sentence	in	the	underlying	case	for	reckless conduct	 with	 a	 dangerous	 weapon	 (Class	 C),	 criminal	 threatening	 with	 a dangerous	weapon	(Class	C),	and	two	counts	of	violating different conditions	of release	 (Class	 E). LeBlanc

- Simpson	 timely	 filed	 a	 noti ce	 of	 appeal of	 the twelve

- count conviction

. 2 M.R.	App.	P.	2B(b)(1).
II.		LEGAL	ANALYSIS [¶1 5 ] On	 a	 challenge	 to the	 sufficiency	 of	 the	 evidence	 to	 support	 a
conviction after	trial ,	we	view	the	evidence , and	all	reas onable	inferences	that may	be	drawn	from	that	evidence,	in	the	light	most	favorable	to	the	trial	court’s judgment	 to	 determine	 whether	 the	 fact

- finder	 rationally	 could	 have	 found each	 element	 of	 the	 charged	 offense	 proved	 beyond	 a	 reasonable	 doubt.

2 LeBlanc

- Simpson	also	appealed	the	convictions	entered	against	him	in	the	underlying	case,	but we	affirmed	those	judgments. See State	v.	LeBlanc

- Simpson ,	Mem

- 18

- 22	(Mar.	15,	2018)

.7 State v. Cummings ,	 2017 ME	 143,	 ¶	 12,	 16 6	 A.3d	 996 ; State	 v.	 Murphy , 2016 ME 5,	¶ 5,	130 A.3d 401

. [¶1 6 ] LeBlanc

- Simpson	argues	that	the	conditions	of	release	order	could not	apply	to	him	because	he	had	not	posted	bail	and had	not been	release d	from jail	to make	the con ditions	of	release	applicable. Contrary	to	LeBlanc

- Simps on’s argument,	the	Bail	Code specifies , “A	condition	of	release	takes	effect	and	is	fully enforceable	as	of	the	time	the	judicial	officer	sets	the	condition ,	unless	that	bail order	expres sly	excludes	it	from	immediate	applicability.” 15	M.R.S.	§	1026(7). The	bail	order	introduced	in evidence	contained	no	such	exclusion	and	thus,	by law,	was	effective	when	entered	at	the	initial	appearance	hearing. [¶1 7 ] To	convict	LeBlanc

- Simpson	of	v iolati ng a	condition	of	release,	the State	was	required	to	prove that	(1)	the	defendant	was	granted	pre

- conviction or	 postconviction	 b ail	 and (2)	 the	 defendant,	 in	 fact,	 violated	 a	 condition	 of release

. See 15	M.R.S.	§	1092 (2017)

. [¶1 8 ] Violation	 of	 a condition	 of	 release	 is a	 “strict	 liability	 crime,” 15 M.R.S.	 §	 1092(3),	 meaning	 that	 proof	 of	 a	 culpable	 state	 of	 mind	 is	 not required	to	secure	a	conviction, see 17

- A	M.R.S.	§	34(4

- A)	(2017)

. However,	as the	State	acknowledged	at	oral	argument,	for	LeB lanc

- Simpson	to	be	convicted of	 the	charge	 of	 violation	 of	a	condition	 of	 release,	 the	State	was	 required to8 offer	 evidence	 and	 prove	 that	 LeBlanc

- Simpson	 had	 prior	 knowledge	 of	 the relevant	 conditions	 of	 release	 and	 that	 those	 conditions	 of	 release	 were

a pplicable	to	him	while	he	remained	incarcerated. [¶1 9 ] The	 State’s acknowledgement	 that	 it	 had	 to	 prove	 that LeBlanc

- Simpson	 had	 notice	 of	 the	 conditions	 of	 release	 he	 was	 accused	 of violating	recognizes	basic	standards	of	due	process.		Those	standards include “notice	of	the	issues,	an	opportunity	to	be	heard,	the	right	to	introduce	evidence and	 present	 witnesses,	 the	 right	 to	 respond	 to	 claims	 and	 evidence,	 and	 an impartial	fact

- finder.” Jusseaume	v.	Ducatt ,	2011	ME	43,	¶	12,	15	A.3d	714; In re Chelsea C., 2005	 ME	 105,	 ¶	 16,	 884	 A.2d	 97. “Persons	 engaged	 in	 activities subject	to	state	or	local	regulation	are	entitled	to	know	with	reasonable	clarity what	they	must	do	to	engage	in	the	regulated	activities	without	viol ation	of	the law	.	.	.

. ” State	v.	M cCurdy ,	2010	ME	137,	¶	17,	10 A.3d	686. [¶20 ] I n	response	to	LeBlanc

- Simpson’s assertion at	trial that	he	had	no knowledge	 regarding	 the	specific	conditions	 that	 the	court	had	imposed , t he State	 was	 required	 to	 present sufficien t	 evidence	 showing	 that LeBlanc

- Simpson	was given adequate	notice	of	 the	conditions	of	release	 that applied to	 him and,	 separately,	 that	 LeBlanc

- Simpson	 was	 advised	 of	 the9 “penalties	 for	 and	 consequences	 of	 violating	 a	 condition	 of	 release

. ” See 15 M.R.S. § 1026(5). [¶21 ] A lthough	 the State entered	in	evidence the	conditions	of	release form , the	 form	 was	 not	 signed	 by	 LeBlanc

- Simpson ,	 and	 does	 not	 indicate anywhere	 on	 the	 form that	 LeBlanc

- Simpson	 was	 provided	 notice	 of	 the conditions

. The	record	does	include the	docket	ent ries	showing	that	bail	with conditions	was	set	at	LeBlanc

- Simpson’s	in i tial	appearance. The	record	does not	include a	transcript	of	LeBlanc

- Simpson’s	initial	appearance , so there	is	no evidence	that ,	at	his	initial	appearance, LeBlanc

- Simpson received actual	notice of	the	conditions	of	release

. The	record	does	include evidence of the	phone	call made by	 LeBlanc

- Simpson	 to	 the	co

- defendant ,	where	 they	di scuss	 that	 they
are	not to	have	contact	with	 one	another. However, the	phone	call does	not establish what	this belief was	based	on. 3

3 The	 State	 entered	 in	 evidence	 two	 additional	 bail	 bonds that	 were entered	 against LeBlanc

- Simpson in a	different case . These	bail	bonds	also	included	conditions	of no	contact	with	the co - defendant.	 	 T here	was	 no	 evidence	 presented at	 trial that	 these	 bail bonds	 remained in	 effect between	November 7,	 2016,	 and	December	 12,	 2016

— th e period	when	 the alleged	 violati ons	 of conditions of	 release occurred .		The State	did	not seek	 to	prove	 that	 the	conditions	 referenced	in t hese other	 bail	 bonds	 were in	 effect	 dur ing	 that	 time. Further,	 because	 the	 earlier	 bail	 order contained	the	s ame	no - contact	condition	as	was imposed	here,	it	would	be	speculative	to	find	that LeBlanc

- Simpson’s	apparent	awareness	of	that	condition	was	based	on	the	bail	order	that	the	State chos e	to	use	as	the	basis	for	this	prosecution	rather	than	on	the	earlier	bail	order s .10 [¶22 ] To	establish that	a	defendant	has	received notice	of	conditions	of release,	the	State	need	not	provide	a	transcript	of	the	initial	appearance	or	bail hearing.		Development	of	such	transcripts	may	not	be	possible when bail	is	set by	 a bail	 commissioner	 or after hours	 by	 other	 judicial	 officers .	 	 However, where	a	transcript	is	not	available,	other	evidence	of	a	defendant’s	knowledge of	conditions	of	release	and	the	penalties	for	violation	of	one	or	more	conditions of	r e lease must be	provided. That evidence	might	include	a	form	signed	by	the defendant	signifying	knowledge	of	the	conditions	of	release	or	testimony	of	a law	enforcement	officer,	bail	commissioner,	or some other	individual	who	may have	observed	the	process b y	which	bail	was	set	and the	conditions	of	release were	imposed. [¶23 ] Here,	the	record	includes	no	evidence	that	when	his	conditions	o f release	were	set during	a	routine	courtroom	proceeding, LeBlanc

- Simpson was notified	of	the conditions	of	release	applied	to	him in	this	proceeding

. Further, when	a	court	issues	a	bail	order,	section	1026(5)(B) (2) requires	 the	court	 to inform	the	defendant	of	the penalties	for	failing	to	appear and	“[t]he	penalties for	and	consequences	of	viola ting	a	condition	of	release.”		Notably,	the	statute does	not	require	the	court	to	inform	the	defendant	of	the individual conditions of	release	themselves.		Therefore,	in	a	case	such	as	this, any inference	that	the11 judge	 who	 issued	 the	 bail	 order	 complied	 w ith statutory requirements is insufficient	 to	 support	 a	 finding	 that	 the	 defendant	was	 put	 on notice	 of the conditions	of	release ,	because	even	full	compliance	with	section	1026(5)	would not	have	resulted	in that notice. 4 [¶24 ] Therefore, the State failed	 to	 meet	 its	 burden of	 proof , as	 the evidence	was	insufficient	to	show	that	LeBlanc

- Simpson	was	on	notice	of	the conditions of	release

. The	entry	is: Judgment vacated.

Lawrence	 C.	 Winger, Esq.	 (orally), Portland,	 for	 appellant	 Ezra	 LeBlan c Simpson Stephanie	 Anderson,	 District	 Attorney,	 and	 Jonathan	 T.	 Sahrbeck,	 Asst.	 Dist. Atty. (orally) ,	 Cumberland	 County	 District	 Attorney ’s	 Office ,	 Portland,	 for appellee	State	of	Maine

Cumberland	County	Unified	Criminal	Docket	docket	number CR

- 2017

- 1110 F OR C LERK R EFERENCE O NLY

4 Because	 the	 evidence	 was	 insufficient	 as	 a	 matter	 of	 law	 for the	 court	 to	 find	 that LeBlanc

- Simpson	 was	 on	 notice	 of	 the	 conditions	 of	 release	 themselves,	 we	 need	 not determine whether	an	inference	of	regularity	that	the	bail	order	was	issued	in	the	way	prescribed	by	section 1026(5)	would	be	a	sufficient	basis	for	a	fact

- finder	to	conclude	that	he	was	notified	of	the	penalties and	consequences	of	a	 violation,	or	whether that	information	is	necessary	 to	prove	a	 violation	of condition	 of	 release	 pursuant	 to	 section	1092. See State	 v.	 Lewis ,	 584	A.2d	622,	 625	 (Me.	 1990) (recognizing	the	“presumption	of	regularity	which	attaches	to	final	judgments	of	convictions”).