STATE v. VAUGHAN

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Supreme Judicial Court of Maine.

STATE of Maine v. David VAUGHAN.

Docket No. Cum-10-264.

Decided: November 30, 2010

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ. Stephanie Anderson, Dist. Atty. William J. Barry, ADA, Portland, ME, for State. Michael B. Whipple, Esq., Molly Butler Bailey, Esq., The Hallett Law Firm, Portland, ME, for David Vaughan.

[¶ 1] David Vaughan appeals from a judgment of conviction for operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A) (2008)1 entered in the Unified Criminal Docket (Cumberland County, Warren, J.) on his conditional guilty plea pursuant to U .C.D.R.P.-Cumberland County 11(a)(2).

[¶ 2] In 2007, Vaughan pleaded not guilty to operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A), and violation of a condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2009). We vacated the grant of Vaughan's subsequent motion to suppress in State v. Vaughan (Vaughan I), 2009 ME 63, ¶ 14, 974 A.2d 930, 934, for reasons we need not reiterate here. On remand, with the agreement of the State and the approval of the court, Vaughan entered a conditional guilty plea for operating under the influence (Class D), 29-A M.R.S. 2411(1-A)(A), in exchange for the State's dismissal of the violation of a condition of release charge. The court sentenced Vaughan to a $750 fine and a ninety-day license suspension. Vaughan now appeals a second time.

[¶ 3] We do not address the substance of Vaughan's contentions2 because his conditional plea was entered in violation of U.C.D .R.P.-Cumberland County 11(a)(2), and Vaughan's appeal is therefore not properly before us. Rule 11(a)(2), pursuant to which Vaughan purported to enter his conditional plea, expressly preserves for appellate review only a “pretrial motion and the ruling thereon.” U. C.D.R.P. -Cumberland County 11(a)(2). In this appeal, however, Vaughan does not seek review of a pretrial ruling by the trial court; he is attempting to secure a second appellate review of the issues we decided in Vaughan I. In these circumstances, notwithstanding the agreement of the State and the approval of the court, a conditional plea was not a procedural mechanism available to Vaughan. We vacate the entry of Vaughan's conditional plea and remand the case to the trial court.

The entry is:

Judgment vacated and remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.  Section 2411(1-A)(A) has since been amended. P.L.2009, ch. 447, § 37 (effective Sept. 12, 2009).

2.  Vaughan seeks this appeal “in light of the decision in Virginia v. Harris,” 668 S.E.2d 141 (Va.2008). We note that Harris v. Virginia, 668 S.E.2d 141 (Va.2008), is a Virginia Supreme Court decision, and therefore not binding, and was issued in 2008, well prior to our decision in Vaughan I.

PER CURIAM.