State of Maine v. Dmitri L. Cannady
State of Maine v. Dmitri L. Cannady
Opinion
*1021 [¶ 1] In 2004, the Secretary of State mailed a notice to Dmitri L. Cannady's last known address, with information that his right to operate a motor vehicle was about to be revoked. The letter was returned by postal officials to the Secretary of State's office with a notice on the envelope that Cannady had moved and left no forwarding address. More than eleven years later, Cannady was stopped for a traffic violation and subsequently charged with operating after habitual offender revocation (Class D), 29-A M.R.S. § 2557-A(2)(A) (2017), and failing to give his correct name (Class E), 17-A M.R.S. § 15-A(2) (2017) ; 29-A M.R.S. § 105(4) (2017). 1 After holding a jury-waived trial, the court (Cumberland County, L. Walker, J. ) convicted him of both charges.
[¶ 2] This appeal by Cannady calls for us to answer the narrow question of whether the statutory requirement of notice is satisfied where the Secretary of State elects to mail the notification to the licensee's most recent address on file with the Secretary of State pursuant to 29-A M.R.S. § 2557-A(1)(A)(4) (2017) and that notification is returned by postal authorities as undeliverable. We conclude that, in those particular circumstances, the statutory notification process necessary for a conviction for operating after habitual offender revocation has not been satisfied. We therefore vacate the conviction for that charge but affirm the conviction for failing to give his correct name. 2
I. BACKGROUND
[¶ 3] The following facts found by the court are supported by the record, which we view in the light most favorable to the judgment.
See
State v. Jeskey
,
[¶ 4] The State charged Cannady with operating after habitual offender revocation *1022 and failing to give his correct name. Cannady entered pleas of not guilty. At a jury-waived trial held in December of 2016, only the officer testified. The court admitted in evidence a certification from the Secretary of State's office stating that Cannady's license had been revoked as of the alleged offense date and that notice of that revocation had been sent to Cannady in conformity with 29-A M.R.S. § 2482(1)(A) (2017) ; a notice of revocation dated July 21, 2004, addressed to Cannady and stating that his driver's license or right to operate will be revoked for an indefinite period effective August 5, 2004; 3 and an envelope bearing a postmark of July 26, 2004, which had been returned to the Secretary of State on August 11, 2004, with the notation, "MOVED LEFT NO ADDRESS UNABLE TO FORWARD RETURN TO SENDER."
[¶ 5] At the close of the State's case, Cannady moved for a judgment of acquittal on the charge of operating after habitual offender revocation on the grounds that he did not have actual knowledge that his license had been revoked and that the Secretary of State had failed to take appropriate steps to provide that notice to him after the written notice of revocation was returned as undeliverable. In a written order, the court denied Cannady's motion and found him guilty of both charges. At the sentencing hearing, the court imposed the mandatory minimum thirty-day jail term and $500 fine on the charge of operating after habitual offender revocation and a concurrent seven-day jail sentence on the charge of failure to give his correct name. Cannady filed a timely notice of appeal. See 15 M.R.S. § 2115 (2017) ; M.R. App. P. 2(a)(3), (b)(2)(A) (Tower 2016). 4
II. DISCUSSION
[¶ 6] Cannady asserts on appeal that pursuant to Maine's statutes and principles of due process-particularly given increases in the severity of sentences to be imposed for the crime of operating after habitual offender revocation 5 -the Secretary of State is required to do more when it is *1023 on notice that its chosen method of communication was unsuccessful and that the State is required to prove that the licensee has received or otherwise has actual knowledge of the revocation.
[¶ 7] We review constitutional challenges de novo,
see
State v. Jones
,
[¶ 8] For a person to be convicted of the crime of operating after habitual offender revocation, the State must prove beyond a reasonable doubt that the accused operated a motor vehicle on a public way when that person's license to operate had been revoked. 29-A M.R.S. § 2557-A(1)(A) (2017). Additionally, and central to the issue in this case, the State must prove that the accused
(1) [h]as received written notice of the revocation from the Secretary of State;
(2) [h]as been orally informed of the revocation by a law enforcement officer;
(3) [h]as actual knowledge of the revocation; or
(4) [i]s a person to whom written notice was sent in accordance with section 2482 or former Title 29, section 2241, subsection 4.
29-A M.R.S. § 2557-A(1)(A) (emphasis added).
[¶ 9] As section 2557-A(1)(A) is structured, the first three of these alternatives comprise various ways of providing the licensee with actual notice, whereas the fourth constitutes an attempt to provide notice. At oral argument, the State made explicit that it is not asserting that Cannady had actual knowledge that the Secretary of State had revoked his license, even though he had been convicted three times for operating after suspension, see supra n.3, and provided incorrect identification information to the officer in this case. Therefore, at issue here is only the last of the alternative elements prescribed in section 2557-A(1)(A)(4), which incorporates the terms of 29-A M.R.S. § 2482 (2017).
[¶ 10] Section 2482 provides the following methods by which the Secretary of State can satisfy the notice requirement set out in section 2557-A(1)(A)(4) :
1. Notification by Secretary of State. Upon determining that a person is subject to license suspension or revocation, the Secretary of State shall immediately notify the person, in writing, of the license suspension or revocation. The notice:
A. Must be sent to the last name and address provided under section 1407 or, if the person has not *1024 applied for a license, on record with the Secretary of State; [ 6 ]
B. Must be sent to the address provided in the report of the law enforcement officer if that address differs from the address of record; or
C. May be served in hand.
....
3. Receipt date. The notice is deemed received 3 days after mailing, unless returned by postal authorities .
29-A M.R.S. § 2482 (emphasis added). Cannady argues that the reference to "receipt" in section 2482(3) means that proof of mailing in and of itself, and without proof of actual receipt, is not enough to satisfy the requirements of this statute.
[¶ 11] As we discuss below, we have held in several cases that section 2482 does not require the State to prove that the licensee actually received notice of a license suspension or revocation. We have articulated that conclusion, however, in cases where the mailed notice was not returned by postal authorities as undeliverable. By contrast, in this case we are called upon for the first time to address the question of whether compliance with section 2482(1)(A), which ordinarily requires only that the notice be mailed to the licensee's last known address, is sufficient when that notice is returned by postal authorities and, pursuant to section 2482(3), the licensee is therefore not deemed to have received that notice in that situation.
[¶ 12] To address this issue, we review the evolution of Maine law applicable to the notice requirement, and we then apply the principles we glean from that review to the facts of this case.
A. Maine Law Governing Notice of License Suspension and Revocation
[¶ 13] In
State v. Kovtuschenko
,
[¶ 14] Affirming the conviction on appeal, we explained the reason why the State was required to prove only that the notice had been mailed and not actually received:
It has long been the law in this jurisdiction that proof of mailing raises a presumption of receipt . Undoubtedly the Legislature had this history in mind along with the administrative convenience of this system, and above all with *1025 its concern that presumptively dangerous operators must be removed from Maine's highways ....
[¶ 15] Importantly for the present case, the core of the analysis in
Kovtuschenko
is the connection we drew between mailing and receipt: proof of mailing is material, not for its own sake, but because mailing to the licensee's last known address creates some expectation that the addressee
received
the mailed notice, although the State need not go so far as to prove actual receipt.
[¶ 16] Our next opinion that offered a meaningful discussion of the notice requirement was
State v. Lamarre
,
[¶ 17] In 1989, after we issued our opinion in
Lamarre
-where we disclaimed any statutory presumption of receipt based on mailing-the Legislature explicitly created a receipt provision in the statute applicable to provisional licenses by adding the following language: "The notice is deemed received 5 days after mailing,
unless returned by postal authorities
." P.L. 1989, ch. 866, § B-20 (effective April 19, 1990) (codified at 29-A M.R.S.A. § 2241-G(2)(F)(2) (Supp. 1990) ) (emphasis added);
see also
Blier v. Inhabitants of Town of Fort Kent
,
[¶ 18] When the motor vehicle code was recodified in 1993, that statutory reference to receipt was added to statutes governing *1026 operating after suspension or revocation, including the statute at issue in this case. See P.L. 1993, ch. 683, §§ A-1, 2 (effective Jan. 1, 1995) (repealed and replaced Title 29 of the Maine Revised Statutes Annotated). This language remains in effect today, except that the statute now provides a more immediate date of receipt, so that "notice is deemed received 3 days after mailing, unless returned by postal authorities." 29-A M.R.S. § 2482(3).
[¶ 19] This was followed five years later by our decision in
State v. Tayman
,
[¶ 20] This review of Maine law governing the sufficiency of notice of a license suspension or revocation frames the issue presented in this case: are the requirements of sections 2557-A(1)(A)(4) and 2482(1)(A) met when the State elects to prove notice of a license revocation with evidence of mailing but that notice is returned by postal officials to the Secretary of State's office?
[¶ 21] It is evident from section 2482 and applicable case law that the requirement of notice of a license suspension or revocation is not always satisfied with bare proof that the notice was mailed. Rather, our case law is rooted in
Kovtuschenko
,
[¶ 22] Furthermore, the connection between proof of mailing and some expectation of receipt is supported by the notice requirements enumerated by section 2557-A(1)(A). As noted above,
see
supra
¶¶ 8-9, the first three methods by which the State can prove the element of notice are with evidence that the licensee received some
*1027
form of actual notice of the administrative action taken against his or her license.
See
29-A M.R.S. § 2557-A(1)(A)(1)-(3). In contrast, although the fourth method nominally requires only proof of the mailing itself,
id.
§ 2557-A(1)(A)(4), that mailed notice is deemed to be received
unless
postal authorities return the notice as undelivered to the Secretary of State's office,
id.
§ 2482(3). It would be incongruous to construe section 2482(1)(A) in a way that allows the act of mailing to be just as sufficient as the pathways to actual notice also provided in the statute when that mailed notice is returned to the Secretary of State's office.
See
Nastvogel
,
[¶ 23] Therefore, in both case law and statute, the principle of receipt is brought directly into the requirement of notice because mailing is tethered to the result of that mailing-namely, the prospect that the notice will be received. Accordingly, we hold that when postal officials return a mailed notice to the Secretary of State, the specific type of notice defined in section 2482, which is brought into the criminal statute, see 29-A M.R.S. § 2557-A(1)(A)(4), is not satisfied. 10
B. Application of the Notice Statute
[¶ 24] We now consider how these legal principles apply to the State's evidence presented against Cannady.
[¶ 25] We begin by acknowledging that the unavailability of "deemed" notice that occurs when the notice is returned by the post office does not preclude proof of notice by other means. As noted above, however, see supra ¶ 9, at oral argument the State explicitly disclaimed any contention that Cannady's conviction of operating after habitual offender revocation can be affirmed based on any other theory of notice. Rather, the State relies entirely on its assertion that the Secretary of State satisfied the requirements of sections 2482(1)(A) and 2557-A(1)(A)(4) by merely having mailed the notice to Cannady's last known address, even though the notice was returned by postal authorities.
[¶ 26] The terms of the statute foreclose that result, because the undisputed facts in this case establish that postal authorities *1028 returned the notice of revocation to the Secretary of State's office with information that it was undeliverable. Therefore, in the face of the State's unequivocal disavowal of reliance on any other type of notice, the evidence was insufficient for the court to find that the State proved notice as required by statute, which is an essential element of the crime of operating after habitual offender revocation, see 29-A M.R.S. § 2557-A(1)(A)(4), (2)(A), and Cannady's conviction for that crime must be vacated.
[¶ 27] To be clear, our conclusion here does not disturb settled law in Maine that when the State's case is built on the provisions of sections 2482(1)(A) and 2557-A(1)(A)(4) and the Secretary of State's mailing has not been returned by postal authorities, the State is not required to prove affirmatively that the licensee actually received notice of suspension or revocation.
11
In most cases, evidence of mailing, if accepted by the fact-finder, will be sufficient to satisfy the notice requirement pursuant to section 2557-A(1)(A).
See
Tayman
,
III. CONCLUSION
[¶ 28] In summary, we conclude that the evidence is insufficient to support the court's determination that the Secretary of State satisfied the statutory element governing notice of Cannady's license revocation. For that reason, we vacate the conviction for the charge of operating after habitual offender revocation. 12
The entry is:
The judgment of conviction for operating after habitual offender revocation is vacated, and the case is remanded for entry of judgment of acquittal on that charge. The judgment of conviction for failing to give his correct name is affirmed.
The State later dismissed the original charge of failing to give his correct name (Class E), 17-A M.R.S. § 15-A(2) (2017), and filed a substitute charge alleging a different formulation of the same offense, 29-A M.R.S. § 105(4) (2017).
Cannady also argues that the court erred by denying his motion to suppress based on its determination that the traffic stop was lawful and that the evidence was insufficient to support the conviction for failing to give his correct name. Because these challenges are not persuasive, we do not address them further and affirm the conviction for the latter charge.
The appendix filed by Cannady contains a copy of his full driving record. That document, however, was not offered in evidence at trial and is not contained in the record. The Rules of Appellate Procedure provide that the "appendix shall not include any documents that are not a part of the trial court file or the record on appeal, other than a supplement of legal authorities authorized in subdivision (1) hereof." M.R. App. P. 8(c)(2) (Tower 2016) (emphasis added); see also M.R. App. P. 8(g)(1) (restyled Rules).
The notice of revocation sent to Cannady that was admitted at trial, however, contains some limited information about his motor vehicle driving record, which shows that his driver's license expired in 2003 and that he was convicted in 1999, 2002, and 2004 for operating after suspension, thereby bringing him within the statutory definition of "habitual offender." See 29-A M.R.S. § 2551-A(1)(A)(4) (2017).
The restyled Maine Rules of Appellate Procedure do not apply because this appeal was filed prior to September 1, 2017. See M.R. App. P. 1 (restyled Rules).
The current statute that defines operating after habitual offender revocation establishes mandatory minimum penalties of at least a thirty-day jail term and a $500 fine, but, if aggravating factors are present, requires at least a two-year term of imprisonment and a $1,000 fine at the most severe range. 29-A M.R.S. § 2557-A(2)(A), (D) (2017). These sentencing provisions became effective in 2006. P.L. 2005, ch. 606, § A-11 (effective Aug. 23, 2006) (The statute was also amended in 2009 but not in a way that affects the substance of the penalties. See P.L. 2009, ch. 54, § 5 (effective April 22, 2009) ). In contrast, the prior iterations of the statute established only the various classifications of the crime and did not prescribe any mandatory minimum penalties. Compare P.L. 2005, ch. 606, § A-11, with P.L. 2003, ch. 452, §§ Q-90, Q-91, and P.L. 1995, ch. 65, § C-14.
A licensee has thirty days by which to notify the Secretary of State of an address change. 29-A M.R.S. § 1407 (2017).
The operating after suspension statute applicable in
State v. Kovtuschenko
,
1. Offense; penalty. No person may operate a motor vehicle on any public highway of this State at a time when his license ... has been suspended or revoked ... when that person:
....
D. Is a person to whom written notice was sent by ordinary mail at the last known address shown by the records maintained by the Secretary of State.
29 M.R.S.A. § 2184(1)(D) (Supp. 1983). That statute did not contain or make reference to receipt of the notice, as 29-A M.R.S. § 2482(3) (2017) now does. See supra ¶ 10.
Compare P.L. 1987, ch. 791, § 25, with P.L. 1981, ch. 679, § 43.
This evidence included a certificate issued by the Secretary of State, which stated that the notice was sent in accordance with statutory requirements.
State v. Tayman
,
We note that, as a matter of due process, when the Secretary of State suspends or revokes that person's license, the licensee's noncompliance with the statutory obligation to update his or her address with the Secretary of State does not result in the forfeiture of that person's "right to constitutionally sufficient notice."
Jones v. Flowers
,
Unlike the defendants in
Lamarre
and
Kovtuschenko,
who relied on evidence of non-receipt merely to rebut the State's evidence of mailing,
see
State v. Lamarre
,
Because we vacate the conviction on statutory grounds, we do not reach Cannady's assertion that the steps taken by the Secretary of State to notify him of the license revocation were insufficient to satisfy his right to due process.
See
State v. Bassford
,
Reference
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- STATE of Maine v. Dmitri L. CANNADY
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