MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 151
Docket: Cum-15-410
Argued: April 6, 2016
Decided: October 13, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
GEORGE H. HEDERSON
PER CURIAM
[¶1] The State of Maine appeals from an order entered by the trial court
(Cumberland County, Wheeler, J.) granting George H. Hederson’s motion to
dismiss one count of a complaint alleging violation of a protective order
(Class D), 19-A M.R.S. § 4011(1) (2015). On appeal, the State contends that
the court erred when it dismissed that count after concluding that the
no-contact bail conditions ordered by a New Hampshire bail commissioner
are not “similar” to a protective order for purposes of Maine statutes
governing protection from abuse, see 19-A M.R.S. §§ 4001-4014 (2015).
We remand the matter to the Unified Criminal Docket for further proceedings.
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I. FACTS AND PROCEDURE
[¶2] On January 29, 2015, Hederson was arrested in New Hampshire on
a domestic violence charge. He was released later that day on a $5,000
personal recognizance bail,1 subject to a “domestic violence/stalking criminal
order of protection including orders and conditions of bail.” The bail order
and conditions, also issued the same day by a New Hampshire bail
commissioner, required that Hederson stay 150 feet away from the victim and
that he not contact, threaten, or abuse the victim. The order also established
an arraignment date of March 5, 2015, and stated that the conditions were
imposed “pending arraignment.”
[¶3] On April 4, 2015, Hederson allegedly assaulted the victim in
Portland, Maine. On April 6, Hederson was charged by complaint in Maine
with violation of a protective order (Class D), 19-A M.R.S. § 4011(1) (Count I),
based on the New Hampshire order; and domestic violence assault (Class D),
17-A M.R.S. § 207-A(1)(A) (2015) (Count II).
[¶4] On June 24, 2015, Hederson filed a motion to dismiss Count I on
the ground that “a criminal bail order of protection issued by a bail
1This practice appears to be similar to release in Maine on an unsecured bond.
Compare N.H. Rev. Stat. Ann. § 597:2(I)(a) (LEXIS through ch. 330, 2016 Reg. Sess.), with 15 M.R.S.
§ 1026(2-A) (2015).
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commissioner in New Hampshire is not the same or similar to ‘[a] temporary,
interim, or final protective order’ contemplated in [section 4011].”2 The court
heard oral argument and granted Hederson’s motion to dismiss Count I,
concluding that the conditions of release prohibiting contact were not a
“similar order” within the meaning of section 4011. The court reasoned that
bail conditions are not similar to a protection from abuse order because the
latter requires a finding of abuse by a preponderance of the evidence, see
19-A M.R.S. § 4006(1), and the former does not. The State filed a motion for
reconsideration, which the court denied. The State timely appealed.
II. DISCUSSION
[¶5] The State’s authority to appeal is controlled by 15 M.R.S.
§ 2115-A (2015). Section 2115-A provides, in pertinent part, that
[a]n appeal may be taken by the State in criminal cases on
questions of law . . . from a pretrial dismissal of an indictment,
information or complaint[] or from any other order of the court
2 Title 19-A M.R.S. § 4011(1) (2015) provides:
1. Crime Committed. Except as provided in subsections 2 and 4, violation of the
following is a Class D crime when the defendant has prior actual notice, which may be
notice by means other than service in hand, of the order or agreement:
A. A temporary, emergency, interim or final protective order, an order of a tribal
court of the Passamaquoddy Tribe or the Penobscot Nation or a similar order
issued by a court of the United States or of another state, territory, commonwealth
or tribe; or
B. A court-approved consent agreement.
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prior to trial which, either under the particular circumstances of
the case or generally for the type of order in question, has a
reasonable likelihood of causing either serious impairment to or
termination of the prosecution.
15 M.R.S. § 2115-A(1).
[¶6] Although section 2115-A provides the State with the authority to
appeal, “the question always remains whether in any particular case it is
inappropriate for us to exercise that jurisdiction.” State v. Doucette,
544 A.2d 1290, 1292 (Me. 1988). On the record before the Court, we note an
unanswered question of sufficient significance so as to present the possibility
that we are being called upon to issue a purely advisory opinion. The scant
record from the New Hampshire proceedings includes only copies of the bail
bond and the “criminal order of protection including orders and conditions of
bail,” both signed by a bail commissioner, and the complaint, signed by a
justice of the peace. The documents required Hederson to appear before the
Ossipee Circuit Court on March 5, 2015, for arraignment. The issue of bail
would presumably be reviewed de novo by a judge at that appearance.
[¶7] The arraignment date had passed by April 4, the date of the alleged
assault in Maine, but we have no record of what, if anything, happened on
March 5. One possibility is that the bail conditions, which constitute the
principal issue in the State’s appeal, were modified or even eliminated
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because the no-contact condition was expressly ordered to remain pending
until the arraignment date. If the bail conditions were eliminated, any opinion
by us regarding the issues raised in the briefs would be purely advisory. If the
bail conditions were addressed or modified by a judge, then our analysis will
depend on the terms of the order entered by the judge, and not on the expired
terms in the bail commissioner’s order.
[¶8] On this record, without clarification of the status of the bail
conditions after the arraignment date, we cannot adequately address the
issues raised by the parties. Accordingly, we remand the matter to the
trial court to determine the facts and circumstances regarding the conditions
of bail, if any, in the New Hampshire proceedings as they existed on
April 4, 2015.
The entry is:
The matter is remanded to the Unified Criminal
Docket for further proceedings consistent with
this decision. The court may reopen the record
for receipt of further evidence at its discretion.
If the State intends to pursue an appeal after
further action by the court, it shall file a notice
of appeal in the ordinary course.
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On the briefs:
Stephanie Anderson, District Attorney, and Kate Tierney,
Asst. Dist. Atty., Prosecutorial District Two, Portland, for
appellant State of Maine
Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellee
George H. Hederson
At oral argument:
Kate Tierney, Asst. Dist. Atty., for appellant State of Maine
Jamesa J. Drake, Esq., for appellee George H. Hederson
Cumberland County Unified Criminal Docket docket number CR-2015-1855
FOR CLERK REFERENCE ONLY