Machiasport man who pleaded guilty seeks to vacate conviction on 48 burglary and theft charges

Posted March 24, 2014, at 5:20 p.m.

ELLSWORTH, Maine — A Machiasport man convicted two years ago on 48 counts of burglary and theft is petitioning a Superior Court judge to vacate his guilty plea.

Randy G. Millay, 46, currently is serving a 10-year prison sentence at the Maine State Prison in Warren. During a court hearing last week in Ellsworth, Millay told Justice Ann Murray that his former attorney, Jeffrey Toothaker of Ellsworth, should have sought to suppress evidence in the case. Millay also said he had not taken prescribed medication for several days leading up to his pleading guilty to the crimes in court.

Millay and another man, Richard Merritt of Thorndike, came to the attention of police in May 2010 after Merritt, who was in custody at Washington County Jail in Machias on a probation violation, told officers he could tell them where to find some stolen property, according to an 18-page report written in 2010 by Lt. Travis Willey of the Washington County Sheriff’s Department.

After investigating the matter, police suspected Meritt and Millay of committing dozens of burglaries throughout central and eastern Maine. The two men eventually confessed to burglarizing more than 50 locations in Hancock, Penobscot, Somerset, Waldo and Washington counties, according to Willey. The time period when the burglaries were committed is not indicated in the report.

According to the report, the two men confessed to stealing more than a dozen outboard boat motors, more than a half dozen wood splitters, as well as tools, household items, furniture, generators, ladders, appliances, welders, car parts, inspection stickers and even a set of antlers. Many of the items were resold by the two men and later recovered by police in Washington County and in the Waterville area, according to Willey’s report.

Carletta “Dee” Bassano, district attorney for Hancock and Washington counties, said Monday that Merritt also was convicted for the burglary spree and is serving a 10-year prison sentence.

Last year, Millay unsuccessfully appealed his conviction and sentence to the Maine Supreme Judicial Court.

Millay testified March 20 that he did not commit all the burglaries and thefts to which he pleaded guilty in 2012. He was in Florida when some of the thefts occurred, he told Murray, and was not in his right mind when he entered his guilty plea due to having not taken prescribed medication for several days.

Millay also told the judge that Toothaker told him that by pleading guilty, he would get a seven- or eight-year prison sentence, not the 10-year sentence he actually received.

Millay waived his attorney-client privilege with Toothaker for the sake of the hearing, which allowed his former defense attorney to testify on the record.

Called to the stand by Bassano, Toothaker told the judge that he was trying to negotiate a universal plea deal with three different prosecutors in Hancock, Waldo and Washington counties, but it was not easy. He said he did not want to go to trial because Millay had confessed to the crimes and given police officers a tour of multiple places he burglarized.

“He was thorough in his confession,” Toothaker told Murray. “He was contrite in his confession.”

Toothaker also said that though Millay has voluntarily received mental health treatment in the past, he did not think Millay could be found incompetent to stand trial and thus avoid being charged.

“Everyone we’re dealing with [in the criminal justice system] is a little bit touched,” Toothaker said. “Randy is articulate. He’s funny. He just steals. That’s the problem.”

Bassano told the judge that, by getting a 10-year sentence for Millay, Toothaker “worked a miracle.” Millay, the prosecutor added, already had a lengthy criminal history prior to his arrest in 2010.

If the conviction were vacated and prosecuted all over again, Bassano said, “Mr. Millay could start thinking about [getting] a 20-year sentence.”

Millay’s current defense attorney, Andy Slater of Ellsworth, said after the hearing that post-conviction reviews are “not very frequently successful.” Not only does a defendant have to show that an error was made, but that it was an error that likely changed the outcome of a case, he said.

Millay’s gambit of getting his guilty plea vacated is risky, Slater said.

“He would be back at square one” in being prosecuted for the burglary spree, the defense attorney said. “He could get more than 10 years.”

Slater said Murray is expected to make a decision in the next several days.

 

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