MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2016 ME 39
Docket:   Cum-14-369
Argued:   September 16, 2015
Decided:  March 8, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.



                                STATE OF MAINE

                                         v.

                              BRANDON C. HAYES

JABAR, J.

         [¶1] Brandon C. Hayes appeals from a judgment of the Unified Criminal

Docket (Cumberland County, Kelly, J.) committing Hayes to jail pursuant to 17-A

M.R.S. § 1304(3) (2015) for intentionally or knowingly refusing to pay fines

assessed against him following his guilty pleas in 2008 and 2009. We dismiss the

appeal because a section 1304 hearing is a post-conviction proceeding, and

Hayes’s sole avenue for appeal is through post-conviction review in the Superior

Court.

                                I. BACKGROUND

         [¶2] On April 28, 2008, Brandon Hayes was charged by complaint with

theft by unauthorized taking or transfer (Class E), 17-A M.R.S. § 353(1)(A)

(2015). He pleaded guilty to the charge on May 16, 2008. Hayes was ordered to
2

pay a total of $310, and a payment plan was instituted requiring monthly payments

of $20.

        [¶3] On June 16, 2009, Hayes was charged by complaint with unlawful

trafficking in a schedule Z drug (Class D), 17-A M.R.S. § 1103(1-A)(H) (2015).

Hayes pleaded guilty to the charge on August 20, 2009, and was assessed a

$400 fine.1 The two fines were consolidated, and Hayes was ordered to pay twenty

dollars per month. He was also ordered to pay $120 in restitution to the Westbrook

Police Department.

        [¶4] The order establishing a payment schedule for Hayes on August 20,

2009, was the first installment of a long and extensive fine-related procedural

history. Between the original sentencing date of August 20, 2009, and the order of

commitment following a hearing on November 25, 2013, Hayes made numerous

requests for extensions, appeared before the court on many occasions, had several

warrants of arrest issued against him, and was granted numerous extensions to pay

and amended payment schedules.

        [¶5] Hayes requested thirteen extensions of time to pay the fines, stating

various reasons for each request. Among other excuses, he claimed that he was




    1
     Title 17-A M.R.S. § 1301(6) (2015) imposes a mandatory minimum fine of $400 for any conviction
pursuant to 17-A M.R.S. § 1103 (2015).
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unemployed, that he was on general assistance, and that he was disabled due to

mental health issues. The court granted all of his requests.

      [¶6] Hayes appeared before the court on nine occasions to address his

failure to pay the fines. Some of the appearances were in conjunction with his

motions for extensions, and other appearances were in conjunction with warrants

of arrest ordered by the court for his failure to make timely payments. The court

ordered four warrants of arrest during this time period when Hayes did fail to

appear.   It also suspended Hayes’s license to operate a motor vehicle on

November 11, 2012, for non-payment of fines. During this four-year time period,

Hayes made twenty-two installment payments totaling $370.            After an arrest

warrant was issued against him for nonpayment of restitution, Hayes satisfied that

obligation in full on November 4, 2011; however, his fine obligations remained

outstanding.

      [¶7] On November 25, 2013, Hayes appeared before the court for a hearing

pursuant to title 17-A M.R.S. § 1304 (2015), where he was required to show cause

why his failure to pay the fines “was not attributable to an intentional or knowing

refusal to obey the court’s order or to a failure . . . to make a good faith effort to

obtain the funds required for the payment.” 17-A M.R.S. § 1304(3)(A). Following
4

the hearing, the court found that Hayes’s failure to pay was unexcused.2 Hayes

was committed into the custody of the Sheriff “to be given credit in the amount of

$50 per day toward the fine balance.” The court stayed the commitment until

May 27, 2014, to give Hayes an opportunity to avoid jail by paying the fines in

full. Hayes did not file a notice of appeal from that order.

        [¶8] After the November 2013 hearing, Hayes did not make any additional

payments nor did he appear or request a further extension. On July 16, 2014, a

warrant of arrest was issued for nonpayment of the fines. Hayes was arrested on

August 8, 2014, and appeared before the District Court (Eggert, J.) on August 11,

2014.     The court entered an order staying the execution of the commitment

pending the result of this appeal.3 On September 3, 2014, Hayes filed a notice of

appeal.     In that notice, Hayes indicates that he is appealing the order “dated

November 25, 2013, but . . . acted upon August 11, 2014.”

                                         II. DISCUSSION

        [¶9] Post-conviction review in the Superior Court is the sole method of

review of post-sentencing proceedings.                  State v. Dodge, 574 A.2d 892, 893

(Me. 1990). A post-sentencing proceeding is “a court proceeding or administrative

action occurring during the course of and pursuant to the operation of a sentence
    2
      Due to technical difficulties, a transcript of the November 25, 2013, hearing was not preserved.
Hayes did not provide us with a transcript substitute. See M.R. App. P. 5(d).
   3
     Hayes failed to provide a transcript of the August 2014 hearing, in contravention of an order entered
by this Court on January 20, 2015. This appeal proceeded without a transcript.
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that affects whether there is incarceration or its length, including . . . default in

payment of a fine or restitution.” 15 M.R.S. § 2121(2) (2015). A defendant may

bring an action for post-conviction review “if the [defendant] seeking relief

demonstrates that the challenged criminal judgment or post-conviction proceeding

is causing a present restraint or other specified impediment as described [in section

2124].” 15 M.R.S. § 2124 (2015). An order of commitment for inexcusable or

knowing default on any portion of a fine is reviewable only on post-conviction

review.   15 M.R.S. § 2124(1)(D); State v. Colson, 472 A.2d 1381, 1382

(Me. 1984).

      [¶10] Hayes asserts that although 15 M.R.S. § 2121(2) includes within its

definition of a post-sentencing proceeding “default in payment of a fine or

restitution,” his appeal should be allowed to circumvent the post-conviction review

process because (1) a section 1304 hearing does not constitute a “criminal

judgment” for purposes of the post-conviction statute, and (2) he is making a

constitutional challenge to the process by which he was committed, rather than the

commitment itself.

      [¶11] The State contends that post-conviction review is the sole remedy

available to Hayes and this appeal should be dismissed. It maintains that the

imposition of a stayed order of commitment is a judgment for the purposes of
6

section 2121, and that a section 1304 show cause hearing qualifies as a

post-sentencing proceeding within the meaning of 15 M.R.S. § 2121(2).

      [¶12]   Hayes’s argument that a section 1304 hearing is not a criminal

judgment is misplaced. The post-conviction review process encompasses both

criminal judgments and post-sentencing proceedings. A section 1304 hearing is

explicitly included as a post-sentencing proceeding in the post-conviction review

statute. 15 M.R.S. § 2121(2).

      [¶13] Although a direct appeal of a case raising constitutional issues is

allowed, review of Hayes’s constitutional argument would be inappropriate at this

time. Due to a technical error, no transcript of the November 25, 2013, hearing

exists. The appellant bears the burden of providing a record sufficient for us to

consider the issues on appeal.       State v. Chesnel, 1999 ME 120, ¶ 28,

734 A.2d 1131. We have held that where the record on an appeal of a section

1304 order is insufficient to develop constitutional issues, post-conviction review

in the Superior Court is the appropriate avenue to raise and develop the issues.

Colson, 472 A.2d at 1382. There, “the presiding justice will have the ability to

develop an evidentiary record and make findings relevant to the defendant’s

claim.” Id. at 1382 n.3.

      [¶14]   Because the November 25, 2013, hearing was a post-sentencing

proceeding, we dismiss Hayes’s direct appeal.
                                                                                7

        The entry is:

                           Appeal dismissed.



On the briefs:

        Kristine C. Hanly, Esq., The Law Office of Kristine C. Hanly,
        LLC, Portland, for appellant Brandon C. Hayes

        Janet T. Mills, Attorney General, and Donald W. Macomber,
        Asst. Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Kristine C. Hanly, Esq., for appellant Brandon C. Hayes

        Donald W. Macomber, Asst. Atty. Gen., for appellee State of
        Maine



Cumberland County Unified Criminal Docket docket numbers CR-2008-2602 and CR-
2009-3041
FOR CLERK REFERENCE ONLY
