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STATE v. KELLY7/5/1994
ed and denied that he had refused to submit to electronic monitoring.
Officer Farr, present during part of the incident, testified to the same effect, that Kelly's protests amounted to a refusal to submit to electronic monitoring.
My interpretation was that he was refusing to accept it, and
conveyed to me that he wanted the judge to make the decision as
to whether he needed it or not. I advised him that the decision
was made at the time of sentencing when he signed the ISP
contract and agreed to the use of electronic monitoring at our
discretion.
Kelly testified that he was afraid of wearing the bracelet because he feared that he would violate his ISP unknowingly and that the bracelet would get him in trouble. He said his protests were not a refusal, but rather a reaction of fear. Kelly also testified that he believed that if he was willing to go to jail, a judge would make the final decision about whether he needed to wear the bracelet.
The court found Kelly to be in violation, revoked his ISP, and sentenced him to serve the remaining 420 days of his sentence in prison. Kelly timely appealed to this court.
ISP is a sentence to confinement outside an institution under a set of rigorous conditions. 17-A M.R.S.A. § 1261(1). Although it is an alternative to institutional confinement, it is still a sentence to a term of imprisonment. Id. at § 1261(1) & (3). Termination of ISP is governed by 17-A M.R.S.A. § 1265. Section 1265(3) states in pertinent part:
If the court finds by a preponderance of the evidence that the
prisoner has violated a condition of his intensive supervision,
the prisoner shall serve, in institutional confinement, the
balance of the portion of the sentence of imprisonment which
was to be served with intensive supervision.
Kelly argues that the evidence did not show that he refused to wear the monitoring device, but rather that he had reservations
Pursuant to section 1265(3), in order to have ISP revoked, the State must prove the prisoner's violation of ISP conditions by a preponderance of the evidence. The court found that the State proved that Kelly refused to submit to electronic monitoring and that the refusal violated a condition of his probation. We will not set aside a finding of fact unless it is clearly erroneous, i.e., without competent evidence in the record to support it. Morin Bldg. Prod. Co., Inc. v. Atlantic Design & Constr. Co., Inc., 615 A.2d 239, 241 (Me. 1992). In this case, the testimony of Officers Dentico and Farr presented competent evidence in the record to support the court's finding that Kelly refused to submit to electronic monitoring. See State v. Landry, 428 A.2d 1204, 1206 (Me. 1981) (defendant's delayed willingness to submit to a
In this case, as in Landry, Kelly was legally compelled to submit to state action or face specified consequences. Having signed a document submitting to ISP conditions, Kelly was aware of the consequences of his refusal to do so. Kelly initially resisted the state action and later recanted and offered to submit, as did Landry. As in Landry, the officers interpreted Kelly's statements and actions as a refusal. The Superior Court's acceptance of the officers' testimony, and its finding that Kelly refused to submit to electronic monitoring, is not clearly erroneous.
The entry is:
Judgment affirmed.
All concurring.
Page 1 2 Maine DUI Attorneys
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