Opinion
UNIFIED CRIMINAL DOCKET No. CR-13-187
06-01-2015
STATE OF MAINE v. TIMOTHY DUFFY, Defendant
STATE OF MAINE
CUMBERLAND, ss.
ORDER
The court heard argument on May 29 on the motion by defendant Timothy Duffy to modify his sentence pursuant to Rule 35. The modification sought concerns a condition of probation, and at the hearing counsel for petitioner made an oral motion to amend the conditions of probation.
Specifically, Duffy is seeking to delete the requirement that he obtain an evaluation as directed by Probation and if necessary sex offender counseling and treatment as recommended. In the alternative, he is apparently seeking an order that he can have the evaluation conducted by a counselor he is already seeing.
The court has reviewed the audio recording of Duffy's plea and sentence and finds no evidence that the imposition of a probation condition requiring evaluation and if necessary sex offender counseling and treatment was influenced by any mistake of fact. That condition was specifically requested by the State. Nor is there any evidence that the court mistakenly failed to provide that the evaluation could be performed by Duffy's current counselor.
A portion of the discussion occurred at sidebar and is largely unintelligible. However, to the extent that portions of that discussion are audible, they do not support any finding that the sentence was influenced by a mistake of fact. M.R.Crim.P. 35(c)(2). The court will order a transcript in case the transcribers are able to discern more of the proceedings that occurred at sidebar.
Duffy's Rule 35 motion is therefore denied.
The court will not issue any decision on the State's motion to revoke based on Duffy's failure - up to this point - to obtain an evaluation by a counselor deemed qualified by the State and will also not issue any ruling on Duffy's motion to modify the conditions of probation. This is because the parties have not yet determined (1) whether an evaluation from Duffy's current counselor would be acceptable to Probation and (2) if not, whether Duffy would be prepared to submit to an evaluation by a professional deemed qualified by the State.
However, Duffy is on notice that he needs to obtain an evaluation as "directed by {his] probation officer" and that if Probation concludes his current counselor is not qualified, he risks revocation if he does not comply with the conditions of probation. See State v. Webb, 673 A.2d 1345 (Me. 1996). Dated: June 1, 2015
/s/_________
Thomas D. Warren
Justice, Superior Court