Maine Supreme Judicial Court Reports

Cum-06-526. Supreme Judicial Court of Maine. Argued:
October 11, 2006. Decided: January 4, 2007.

Appeal from the Superior Court, District Court (Portland,
Beaudoin, J.)

Stephanie Anderson, District Attorney, Julia A. Sheridan,
Asst. Dist. Attorney (orally), Portland, ME 04101.

Robert A. Levine, Esq. (orally), Portland, ME 04101.



[¶ 1] Loi Ngo appeals from a judgment entered in the
District Court (Portland, Beaudoin, J.) dismissing his
motion, filed pursuant to M.R. Crim. P. 1(c), to vacate
convictions for sexual abuse of a minor and criminal
threatening. See 17-A M.R.S. § 209 (2005); 17-A
M.R.S.A. § 254 (1998)[fn1] Ngo argues that the
District Court improperly determined that it lacked
jurisdiction to decide his motion, and that in his case,
the post-conviction review statutes are unconstitutional as
applied. Because we agree that the District Court lacked
jurisdiction to decide Ngo’s motion, we affirm the


[¶ 2] Ngo is a citizen of Vietnam and has been a
resident of the United States since 1992. On February 3,
1998, while Ngo was represented by counsel, he pleaded
guilty in the District Court to sexual abuse of a minor and
the criminal threatening of a woman who, at the time, was
his wife. The court sentenced Ngo to two consecutive terms
of 364 days in jail and one year of probation, with the
entire term suspended on the count for criminal threatening
and all but ninety days suspended on the count for sexual
abuse of a minor. Ngo apparently served his sentence
without incident, and his probation was terminated early at
the request of his probation officer on August 25, 1999.
Several years later, in April of 2006, federal immigration
officials took Ngo into custody after determining that he
could be deported based on his criminal convictions.[fn2]
Ngo is now being held in custody, allegedly awaiting

[¶ 3] Ngo filed a motion to vacate his convictions
in the District Court on June 12, 2006, pursuant to M.R.
Crim. P. 1(c), which allows for a flexible process in
criminal matters when the Rules of Criminal Procedure do
not otherwise provide a specific procedure. Ngo argued that
his conviction was obtained unconstitutionally because, in
1998, he was deprived of adequate assistance of counsel
when his court-appointed attorney failed to alert him to
the immigration consequences of a guilty plea.[fn3] See
Aldus v. State, 2000 ME 47, ¶¶ 18-21, 748
A.2d 463, 469-72; M.R. Crim. P. 11(h). Ngo argued that he
“[did] not appear to be eligible” for the post-conviction
review process in the Superior Court under 15 M.R.S.
§ 2124 (2005) because he was not under any restraint
or impediment as required by the statute, and therefore
Rule 1(c) was his sole remedy. The District Court dismissed
the motion, reasoning that the Superior Court holds
exclusive jurisdiction over post-conviction review and it,
rather than the District Court, should determine whether
that process is available. Ngo then filed his appeal.


[¶ 4] When the legality of a criminal conviction
cannot be resolved by direct appeal or any “remedies that
are incidental to proceedings in the trial court,” the
post-conviction review process is the exclusive means for
judicial review. 15 M.R.S. § 2122 (2005); see also
State v. Trott, 2004 ME 15, ¶ 8, 841 A.2d 789, 791.
Jurisdiction over the post-conviction review process rests
exclusively in the Superior Court. 15 M.R.S. §
2123(1) (2005); Trott, 2004 ME 15, ¶ 13, 841 A.2d at

[¶ 5] Ngo has not filed a post-conviction petition
to have the Superior Court undertake a review of his
challenge to the 1998 convictions. Instead, he relies on
M.R. Crim. P. 1(c). Rule 1(c) provides that: “When no
procedure is specifically prescribed the court shall
proceed in any lawful manner not inconsistent with the
Constitution of the United States or of the State of Maine,
these rules or any applicable statutes.” M.R. Crim. P.

[¶ 6] We have made it clear, however, that Rule 1(c)
does not give the court the authority to act where a
procedure or remedy has been specified by rule or statute.
The fact that a party has not availed himself of the
specified rule or statute in a proper and timely manner, or
anticipates that the procedure may not provide complete
relief or would be unconstitutional as applied, does not
change the fact that a procedure has been made available.
Cf. State v. Johnson, 2006 ME 35, ¶ 14, 894 A.2d
489, 492-93 (holding that Rule 1(c) cannot be used to
correct an illegal sentence after the expiration of the
remedy provided in M.R. Crim. P. 35, which allows for the
correction of such a sentence within one year of
imposition). Ngo’s motion under Rule 1(c), which seeks the
relief that the post-conviction review process is intended
to provide, cannot circumvent that process or defeat the
procedural requirement that post-conviction review take
place in the Superior Court. Cf. State v. Liberty, 2004 ME
88, ¶ 8, 853 A.2d 760, 762 (refusing to treat as a
petition for post-conviction review an improper motion
challenging a conviction in the District Court pursuant to
M.R. Crim. P. 12(b)(2), which allows a defendant to object
during a pending proceeding to a complaint that fails to
charge an offense, because the motion was not filed in the
Superior Court). Because Rule 1(c) does not provide a
remedy to substitute for Ngo’s failure to challenge his
conviction through the post-conviction process, we must
affirm the District Court’s dismissal of his motion.

[¶ 7] Ngo argues to us that the post-conviction
statutes are unconstitutional and violate his right to due
process of law because they do not afford a remedy from an
illegal conviction to someone who has served a sentence,
but they do allow a person who refuses to pay a fine to
challenge a conviction. See 15 M.R.S. § 2124(1)(E)
(2005) (providing that an unpaid fine is a “present
restraint” subject to post-conviction review). Ngo did not
present his constitutional challenge to the District Court
and, therefore, has failed to preserve it.[fn4]

The entry is:

Judgment affirmed.

[fn1] Title 17-A M.R.S.A. § 254 has since been
amended. See P.L. 2003, ch. 138, ¶¶ 2 to 4
(effective Sept. 13, 2003) (codified at 17-A M.R.S.
§ 254 (2005)).

[fn2] Ngo alleges that the Department of Homeland Security
became aware of his convictions when he applied for
naturalization in 2005.

[fn3] Ngo does not argue that he was not guilty of the
charges, but only that he would have negotiated differently
with the District Attorney’s office had he been aware of
the immigration consequences of the convictions.

[fn4] We do not suggest that Ngo’s failure to present his
constitutional challenge in the context of his Rule 1(c)
motion forecloses him from making the challenge in a
post-conviction proceeding or other context.

LEVY, J., concurring.

[¶ 8] I join in the Court’s opinion and write
separately to address the view expressed by the dissent
that today’s decision and our prior decision in State v.
Trott, 2004 ME 15, 841 A.2d 789, conclusively determine
that Ngo is ineligible for post-conviction review.

[¶ 9] This case and Trott bear some similarity, but
they are far from identical and present different questions
of law. In Trott we concluded that when a criminal judgment
sentenced an offender “to time previously served, imposed
without any additional term of probation or other
restriction on the individual, [it] is the functional
equivalent of an unconditional discharge as that term is
addressed by the post-conviction review statute.” Id.
¶ 13, 841 A.2d at 793. Trott did not consider
whether the same is true when, as here, the offender has
been released from incarceration and has successfully
completed probation. In addition, in Trott we did not
address the claim that if the statute is applied so as to
deprive a person in Ngo’s circumstances of the opportunity
for post-conviction review, the statute violates the
constitutionally guaranteed right to due process of
law.[fn5] Finally, Ngo is not automatically barred from
post-conviction review by the statute’s limitations period.
As we explained in Diep v. State, 2000 ME 53, ¶ 6,
748 A.2d 974, 976, a case also involving a claim that a
defense attorney failed to advise an alien defendant that a
guilty plea would subject the defendant to deportation, the
limitations period runs from “[t]he date on which the
factual predicate of the claim or claims presented could
have been discovered through the exercise of due
diligence.” 15 M.R.S. § 2128(5)(C) (2005).

[¶ 10] Whether principles of statutory construction
or constitutional law require that the post-conviction
review statute be construed so as to permit individuals in
Ngo’s circumstances to challenge their convictions is a
question that is not answered by Trott or our decision

[fn5] Ngo contends that the post-conviction review statute
is both irrational and arbitrary because it treats a
criminal judgment for which a fine remains unpaid as a
“present restraint or impediment” subject to
post-conviction review, 15 M.R.S. § 2124(1)(E)
(2005), but is silent with respect to a criminal judgment
that has, at least indirectly, resulted in an offender’s
incarceration for a violation of federal immigration laws.
Although Ngo challenges the statute’s constitutionality in
his brief to us, the issue was not presented to the
District Court and is unpreserved.

SILVER, J., dissenting.

[¶ 11] I respectfully dissent from the majority’s
determination that the District Court lacked jurisdiction
pursuant to M.R. Crim. P. 1(c) to decide Ngo’s motion to
vacate his convictions. Although I agree with the majority
that the Superior Court holds exclusive power to conduct
post-conviction review, our decision in State v. Trott
conclusively determines that Ngo is ineligible for
post-conviction review. As such, the majority view creates
procedural inefficiency as well as substantive

[¶ 12] Trott involved a factual scenario similar to
Ngo’s. In 2001, Geno Trott, a citizen of Bermuda, pleaded
no contest and was convicted of terrorizing his wife and
obstructing the report of a crime. State v. Trott, 2004 ME
15, ¶ 3, 841 A.2d 789, 790. The court sentenced Trott
to sixty days in jail, with credit for time served. Id.
Because Trott had already served more than sixty days, he
was released without further restriction or any term of
probation. Id. In 2003, Trott applied to the Bureau of
Citizenship and Immigration Services for an adjustment to
his citizenship status. Id. ¶ 4, 841 A.2d at 790.
The BCIS determined that each of Trott’s convictions were
deportable offenses. Id. Trott filed a motion in District
Court for a writ of coram nobis and for post-conviction
review, alleging that his no contest pleas were obtained in
violation of his right to effective assistance of counsel
and right to due process. Id. ¶¶ 5-6, 841
A.2d at 790-91. The District Court denied Trott’s motion
for lack of subject matter jurisdiction. Id. ¶ 5,
841 A.2d at 790-91.

[¶ 13] On appeal, we determined that Trott’s
situation — presently subject to restraint in the
course of deportation proceedings — did not satisfy
the jurisdictional prerequisite of present restraint for
post-conviction review under paragraphs A, B, D, or E of 15
M.R.S. § 2124(1) (2005).[fn6] Id. ¶ 9, 841
A.2d at 791-92. However, we ultimately determined that
Trott was eligible for post-conviction review under
paragraph C because a “sentence to time previously served,
imposed without any additional term of probation or other
restriction on the individual, is the functional equivalent
of an unconditional discharge as that term is addressed by
the post-conviction review statute.” Id. ¶ 13, 841
A.2d at 793. Accordingly, we affirmed the District Court’s
ruling because a remedy was available to Trott to address
his concerns through post-conviction review in Superior
Court. Id.

[¶ 14] Like Trott, Ngo’s restraint by federal
immigration officials in the course of deportation
proceedings is the direct result of the challenged criminal
convictions but does not qualify as present restraint under
paragraphs A, B, D, or E of 15 M.R.S. § 2124(1).
However, unlike Trott, Ngo was sentenced to and served a
probationary period, which disqualifies him from
eligibility for post-conviction review under paragraph C.
Thus, because Ngo has already completed his sentence and
because his detainment by federal immigration officials
does not satisfy the jurisdictional prerequisite of
restraint or impediment, he is ineligible for
post-conviction review.

[¶ 15] Post-conviction review is only the exclusive
mode of review for matters that it covers; it does not
cover Ngo’s situation. Ngo’s motion to vacate his criminal
convictions is based on the failure of his attorney to
inform him of the potential immigration consequences of his
convictions. He “failed” to petition for post-conviction
review in a timely manner because he did not learn of the
immigration consequences until he was taken into federal
custody years after he had completed his sentence. Ngo’s
custody and deportation proceedings do not constitute
restraint or impediment under the post-conviction statute.
The post-conviction review process simply does not
contemplate Ngo’s circumstances. Lacking a procedure
specifically prescribed to address this situation, M.R.
Crim. P. 1(c) is the proper jurisdictional basis for Ngo to
bring his motion in District Court. Indeed, M.R. Crim. P.
1(c) is Ngo’s only opportunity to obtain due process under
the laws of Maine.

[¶ 16] Without any legal recourse, Ngo will be
deported because he failed to petition for post-conviction
review before he knew about what his counsel failed to tell
him. But cf. State v. Johnson, 2006 ME 35, ¶¶ 5-7,
14, 894 A.2d 489, 490-91, 492-93 (denying the
State’s motion to correct a sentencing error under M.R.
Crim. P. 1(c) four years after the sentence was imposed,
where the State knew of the error at the time of judgment
and commitment and a specific procedure was available
pursuant to Rule 35(a) to correct the error within one
year). The majority would allow a post-conviction review
petition in Superior Court, where Ngo could challenge the
constitutionality of the post-conviction review statute as
applied to him. Suggesting that Ngo may bring a
constitutional challenge does not thereby provide him with a
procedure by which to bring his claim. M.R. Crim. P. 1(c),
on the other hand, is a procedure that is, by definition,
available to Ngo where no other procedure is prescribed,
regardless of whether the absence of a procedure is
constitutional. Further, it is not to be taken lightly that
we have no assurance that Ngo will not be deported by
federal immigration officials while his constitutional
challenge to a state law is pending. It is our obligation
to see that Ngo has an opportunity to present the merits of
his position; it is not Ngo’s obligation to be the vehicle
through which the constitutionality of 15 M.R.S. §
2124 is tested. For these reasons, I would find that the
District Court has jurisdiction to hear Ngo’s motion to
vacate his criminal convictions pursuant to M.R. Crim. P.

[fn6] Title 15 M.R.S. § 2124 (2005), entitled
“Jurisdictional prerequisite of restraint or impediment,”

An action for post-conviction review of a criminal judgment
of this State or of a post-sentencing proceeding following
the criminal judgment may be brought if the person seeking
relief demonstrates that the challenged criminal judgment
or post-sentencing proceeding is causing a present
restraint or other specified impediment as described in
subsections 1 to 3:

1. Present restraint by criminal judgment. Present
restraint or impediment as a direct result of the
challenged criminal judgment:

A. Incarceration pursuant to the sentence imposed as a
result of the criminal judgment which is challenged;

B. Other restraint, including probation, parole, other
conditional release or a juvenile disposition other than
incarceration or probation, imposed as a result of the
sentence for the criminal judgment which is challenged;

C. A sentence of unconditional discharge resulting from a
criminal judgment, for a period of 2 years following the
date of sentence;

D. Incarceration, other restraint or an impediment
specified in paragraphs A, B and C which is to be served
in the future, although the convicted or adjudicated
person is not in execution of the sentence either because
of release on bail pending appeal of the criminal
judgment or because another sentence must be served first;

E.A fine imposed by the challenged criminal judgment
which has not been paid;