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State v. Dickinson
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Decision:		1998 ME 27
Docket:		Cum-97-104
Argued:		December 4, 1997
Decided: 		February 9, 1998




	[¶1]	Pursuant to M.R. Crim. P. 37C, Norman Dickinson appeals from
an order entered in the Superior Court (Cumberland County, Saufley, J.)
denying his motion, filed pursuant to M.R. Crim. P. 35(a), for a correction of
his sentence.{1}  Dickinson challenges the legality an order amending the
conditions of his probation to permit his probation officer to require
Dickinson to reside at a supervised community confinement center on a
short-term basis, while a suitable long-term residence was located.  Because
Dickinson's probation has been revoked, the issue presented by his appeal is
moot and we decline to address it.  
	[¶2]  In 1989, following the entry of guilty pleas to robbery (Class A),
17-A M.R.S.A. § 651(1) (1983), kidnapping (Class A), id. § 301(1) (1983),
and two counts of criminal threatening with a dangerous weapon (Class C),
id. §§ 209, 1252 (1983 & Supp. 1997), Dickinson received a twenty-year 
sentence on the robbery and kidnapping charges, with all but ten years
suspended, followed by five years of probation.{2}  The conditions of probation
imposed by the court were stringent, including requirements that
Dickinson's probation officer approve his residence; that Dickinson not
change his residence without the prior approval of his probation officer; and
that Dickinson remain at his residence except when his probation officer
approved, in advance, travel to and from specific locations for specific
	[¶3]  On January 24, 1997, Dickinson, having served the
unsuspended portion of his sentence, was released from the Maine
Correctional Institute at Warren and began serving his term of probation. 
Because Dickinson's probation officer, Peter Deane, had been unable to
locate a suitable residence for him, Dickinson was placed in a short-term
crisis shelter in Portland.  
	[¶4]  On January 29, the Division of Community Corrections moved to
amend the conditions of Dickinson's probation so that he could be required
to reside at the Bangor Pre-Release Center (BPRC), while his probation
officer located an acceptable long-term residence.   At a hearing on the
motion that day, Deane testified that Dickinson would be required to leave
the shelter at 5:00 p.m. and that he had been unable to arrange an alternate
residence.  Finding that the original conditions of probation contemplated
that Dickinson would have a specified place to live, the court granted the
motion and amended the conditions as requested.{4}  
	[¶5]  Pursuant to M.R. Crim. P. 35(a), Dickinson moved to correct the
sentence, contending that the amendment violated his State and Federal
Constitutional rights.  At a hearing on the motion, a probation officer
testified that the BPRC was not willing to accept Dickinson as a resident.
Dickinson's motion was denied.  He then filed a notice of appeal and a
memorandum in support of the issuance of a certificate of probable cause. 
See M.R. Crim. P. 37C(a), (d).  On May 27, 1997, we issued an order
granting the certificate.  See M.R. Crim. P. 37C(i).  
	[¶6]  Between July 9 and August 12, 1997, the Division of Community
Corrections moved to revoke Dickinson's probation on three separate
occasions.  The first motion alleged that Dickinson exposed himself to a
female correctional officer; that he refused to execute a release as required
by the conditions of his probation; and that he refused to enter the
Yokefellow House Program contrary to the conditions of his probation.  The
second motion alleged that Dickinson twice exposed himself to another
female correctional officer.  The third motion alleged that Dickinson
committed the offense of trafficking in prison contraband by possessing
a sharpened toothbrush.  On August 26, 1997, the Superior Court
(Cumberland County, Bradford, J.) revoked Dickinson's probation and
ordered him to serve three years of the suspended portion of the sentence. 
	[¶7] "We review only those cases that present a justiciable
controversy."  Sordyl v. Sordyl, 1997 ME 87, ¶4, 692 A.2d 1386, 1387.  If
the issues raised by an appeal become moot, the appeal does not present a
justiciable controversy.  See id.{5}  "The test for mootness is whether
'sufficient practical effects [flow] from the resolution of [the] litigation to
justify the application of limited judicial resources.'"  Campaign for Sensible
Transp. v. Maine Turnpike Auth., 658 A.2d 213, 215 (Me. 1995) (quoting
State v. Gleason, 404 A.2d 573, 578 (Me. 1979)).  We will not decide an
issue that has been stripped of its controversial vitality "'by virtue of legally
valid and recognizable supervening circumstances[.]'"  Id.  (quoting Good
Will Home Ass'n v. Erwin, 285 A.2d 374, 379 (Me. 1971)).  A dispute lacks
controversial vitality if a decision by this court would not provide the
appellant with any real or effective relief.  See International Paper v. United
Paperworkers Int'l, 551 A.2d 1356, 1360-61 (Me. 1988).
	[¶8]  Whether Dickinson can be forced to reside at the BPRC during
his term of probation is no longer a justiciable issue.  The revocation of
Dickinson's probation is a legally valid and recognizable supervening
circumstance that has stripped this dispute of its controversial vitality. 
Because his probation has been revoked, Dickinson will remain incarcerated
for three years and a decision on the legality of the amendment to the
conditions of his probation would not provide him with real or effective
relief.  See United Paperworkers Int'l, 551 A.2d at 1360-61.  Moreover,
there is little likelihood that the issue will arise again in similar
circumstances.  See Lockman v. Secretary of State, 684 A.2d 415, 420 (Me.
1996) (stating that justiciability requires controversy based on existing facts,
not facts that may develop in the future).   
	The entry is:
			Appeal dismissed. 
Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Zbigniew J. Kurlanski, Esq. P O Box 46 Portland, ME 04112
FOOTNOTES******************************** {1} Rule 35(a) provides: "On motion of the defendant or the attorney for the state, or on the court's own motion, made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner." Rule 37C sets forth the procedures by which a defendant may appeal from an adverse ruling on a Rule 35 motion. {2} Dickinson also received a concurrent five-year sentence on the criminal threatening charge. {3} Pursuant to M.R. Crim. P. 40(a) and 15 M.R.S.A. §§ 2151-2157 (Supp. 1997), Dickinson appealed his sentence. For reasons unrelated to the conditions of probation, the sentence was vacated. See State v. Dickinson, 662 A.2d 202 (Me. 1995). On remand, the Superior Court (Cole, J.) imposed the same sentence and virtually identical conditions of probation. {4} The amendment that Dickinson challenges here is no more restrictive than the original conditions of probation, which grant the Department of Probation plenary authority to dictate where Dickinson would live. In this appeal, Dickinson does not contest the validity of those original conditions. {5} None of the exceptions to the mootness doctrine apply to this case. See Sordyl, 1997 ME 87, ¶ 5, 692 A.2d at 1387.