AUBURN — A Lewiston man plucked from an apartment building roof by a Fire Department ladder after he fled from police testified in court Wednesday that he felt pressured to plead guilty and didn’t understand the term of the sentence for his plea agreement.
Demetrius Davenport, 27, was hoping for a new trial after submitting a petition for post-conviction review of his case. He claims his trial attorney was ineffective in assisting him, a violation of his constitutional rights.
Davenport appeared in court in handcuffs, his ankles shackled.
He told Androscoggin County Superior Court Justice MaryGay Kennedy that he didn’t understand that his sentence of five years on the count of possession of a firearm by a prohibited person, plus two years on a charge of theft, would be served consecutively. Davenport said he believed he would be serving the time he was sentenced on the second charge at the same time as the first charge, meaning he would only serve five years in prison.
He only discovered that he had been sentenced to seven years in prison after arriving at the Maine State Prison, he said.
Had he realized he would be sentenced to seven years in prison, Davenport said he would have taken his chances with a jury at trial.
“I wasn’t guilty of the charge,” he said. He told his attorney, Lewiston lawyer George Hess, of his innocence, he told the judge Wednesday. “I thought I could beat this.”
The case became complicated by the U.S. Attorney’s Office, which expressed interest in prosecuting Davenport if it wasn’t resolved with a plea at the state level, Davenport said Hess told him.
The firearms charge is a federal crime.
When Hess discussed with Davenport a plea offer from the Androscoggin County District Attorney’s Office, Davenport was left with the impression that he would serve five years in prison — not seven — despite a conversation about the meaning of the words “consecutive” and “concurrent,” he said.
He said he suffered from several disorders, including anxiety and attention deficit hyperactivity, that cause him to be distracted by other thoughts and lower his level of comprehension. He had taken medications for those disorders before he was jailed, but had been denied prescribed medications at the Androscoggin County Jail while awaiting trial.
“When (Hess) was talking to me, my mind was moving so fast, I wasn’t even understanding any of the things he was talking about,” Davenport said. He said he misunderstood “consecutive” to mean “concurrent.”
Davenport said he also suffered chronic damage from repeated concussions sustained while playing football when he was younger.
“I was pretty much forced to take that deal,” he said.
Davenport said he had asked for more time to think about it, but was told by Hess he had to decide that same day.
By contrast, Hess testified Wednesday as a witness for the state, saying he thought the prosecution had some problems. He and Davenport had prepared for trial and even hired a private investigator to gather evidence to support Davenport’s case. They met eight times in all.
But once federal prosecutors expressed interest in taking over the case, Hess said he explored Davenport’s possible exposure to time behind bars as laid out by federal sentencing guidelines and learned that his client could spend at least 10 years in federal prison, if the U.S. Attorney’s Office were to pursue the case.
That office had told Hess that it wanted Davenport to serve a sentence of no less than seven years in his state case.
Hess said he met with Davenport and explained the complication and the possible consequences of each of the options. He said he worked with Davenport to arrive at the plea agreement that his client took on May 22, 2012.
Hess said Davenport understood when he explained to him that he would serve a five-year sentence followed by a two-year sentence in state prison on the two felony charges to which Davenport indicated he wanted to plead guilty.
“He knew it was a total of a seven-year period,” Hess said, noting the sentence was spelled out in a letter drafted by his office that went to Davenport.
All clients are offered a consecutive sentence, Hess said, and he’s always careful to explain the distinction between a consecutive and a concurrent sentence.
“I say one plus one plus one and try to illustrate (it) in ways so that they clearly understand that once they finish one sentence, they’re going to start the next one,” Hess said. “Mr. Davenport’s an intelligent man; he’s sophisticated … he knew exactly what was going on and what he was accepting.”
At Davenport’s 2012 plea hearing, the judge also explained the terms of the plea and sentence and asked him whether he understood the terms of the agreement. He said he did. Asked by the judge at his plea hearing if there was any physical or emotional reason he couldn’t go forward with the plea, Davenport said there wasn’t.
Davenport said he was completing his final semester of an associate degree at the University of Maine at Augusta, for which he’s been given a scholarship.
Hess said he gave Davenport plenty of time — more than one day — to consider the plea agreement and didn’t apply any pressure on him. He said he told Davenport, as he does all of his clients, that they can change their minds about a plea and go to trial instead, right up until the time they admit their guilt at a plea hearing. Hess said he is always ready to take a case to trial.
Davenport was indicted by an Androscoggin County grand jury on two counts of robbery, Class A felonies, each punishable by up to 30 years in prison. In addition to a misdemeanor assault, he was charged with possession of a firearm by a prohibited person and criminal threatening. Each of those Class C felonies carries a maximum sentence of five years.
In the final agreement, Davenport pleaded guilty to the charges of possession and theft, each Class C felonies, punishable by up to five years in prison, the other charges were dropped. Hess said he had worked out an offer for an alternative that would have had Davenport plead guilty to a single felony and two misdemeanors, but Davenport rejected that option.
District Attorney Andrew Robinson and defense attorney Hunter Tzovarras are expected to submit written arguments to Justice Kennedy before she rules on Davenport’s petition.
In November 2011, police received a tip that a felon at 87 Bartlett St., Lewiston was armed with a pistol-grip shotgun. By the time police arrived, Davenport had fled, police said.
They followed up a tip that Davenport had gone to 62 Oak St., but were told he had returned to Bartlett Street.
When police went back to the original address, they were told by witnesses that Davenport had threatened them with a gun. Police followed tracks in the snow from a porch up to the roof. They found Davenport on the roof, but couldn’t remove him, so they called the Lewiston Fire Department for a ladder.
Police used a firetruck ladder to get Davenport off the roof and took him into custody. They later found his gun outside a window at his Oak Street residence.
cwilliams@sunjournal.com
Send questions/comments to the editors.
