STATE v. KELLY
7/5/1994
Defendant Donald Kelly appeals from a judgment entered in the Superior Court (Cumberland County, Mills, J.) revoking his Intensive Supervision Program (ISP) and ordering him to serve the remaining portion of his sentence in institutional confinement. Kelly contends that the court erred in finding that he had violated a condition of his ISP by refusing to submit to electronic monitoring. Finding no error, we affirm the judgment.
In 1992, Kelly was convicted of two counts of Class B theft and one count of Class C theft, 17-A M.R.S.A. § 353 (1983), and the court imposed concurrent sentences of six years for each Class B count and a concurrent sentence of eighteen months for the Class C count. All but three years of the sentence on the Class B counts was suspended, with the last eighteen months to be served with intensive supervision. See 17-A M.R.S.A. § 1261-1267 (Supp. 1993). Special conditions were imposed on Kelly's participation in ISP, including submitting to electronic monitoring at the discretion of his ISP team of officers. Kelly signed a document in which he acknowledged and accepted these conditions as written. The document that Kelly signed also stated that failure to abide by the conditions would result in removal from ISP and from the community.
At the ISP revocation hearing, ISP Officer Joseph Dentico testified that on June 8, 1993, Kelly had been issued a written warning for violations of his ISP conditions. Kelly telephoned
Approximately an hour later, Kelly came to the ISP office without permission and told Dentico that he could not be placed on electronic monitoring. Electronic monitoring is done by an ankle bracelet and Kelly protested that it would be visible to his clients and could interfere with his business. When told that the bracelet was not visible underneath pants, Kelly said that he wears shorts in the summer. Dentico testified that
[Kelly] said, ["]I'm sorry, I'm not going to wear it, take me
to jail, I would rather go to jail.["] It's not uncommon for
people to, prisoners to at first show some reluctance to
electronic monitoring. I've never had anyone on this program
that's done it with a smile on their face. So I gave him a
chance to spout off and get it out of his system . . . . He
said he wanted a judge to make this decision, and I explained
to him that this was our decision, that this was actually a
condition of his ISP, and he again said[, "]take me to jail,
I'll have the state support me, I can write my book in jail.["]
Again, you know, I tried to make him realize just what that
meant, that, you know, other people have been on this bracelet,
and they have managed to conduct their daily affairs, that it
hasn't been a hindrance, and he said[, "]it is going to be for
me, I'm just not going to wear it[."] . . . fter it was
clear that he wanted to go to jail I explained to him that
would eventually have the right to a hearing before a judge,
however would have to sit in jail possibly for up to a
week before that hearing takes place, and he sat there in
silence . . . . At one point he stood up and held his hands out
like this (indicating), I believe it was a gesture for us to
handcuff him. I had to tell him to sit down . . . . I stepped
out of the room to retrieve my handcuffs, because at that point
I had decided that he was going to go to jail, and I returned,
and I took him into custody, placed handcuffs on him.
Dentico stated that he believed Kelly's protests effected a refusal to wear the bracelet because Kelly was so adamant that he could not do his job with the bracelet. Dentico testified that when he put the handcuffs on, Kelly acted very surpris
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