BANGOR, Maine — A local man who was sentenced to 35 years in prison for the shooting death of another young man during a street fight nearly five years ago was in court Thursday seeking to reinstate a plea deal he was offered and rejected in 2010.
Zachary Carr, now 23, was a teenager when he was convicted of murder for shooting and killing John “Bobby” Surles, 19, of Bangor in a street brawl between two rival groups on Jan. 27, 2010. Surles died the next day.
Carr’s attorney filed for a postconviction hearing claiming that Carr did not fully understand the ramifications of turning down a plea agreement offered by the state that asked him to enter a guilty plea on a manslaughter charge in exchange for a penalty of up to seven years in prison or face a trial for murder.
The hearing was in front of Superior Court Justice Michaela Murphy, who also presided over the weeklong murder trial in 2011.
“The issue on the postconviction [review] is whether Zach understood the seven-year plea offer on the manslaughter charge and whether his lawyers properly explained the offer to him and the benefit of the offer versus going to trial on the murder charge,” defense attorney Hunter Tzovarras of Bangor said at Thursday’s hearing.
“The only thing I remember them telling me is, ‘Don’t worry about being convicted of murder,’” Carr told Murphy, referring to his lawyers and the private investigator they hired. “I was always being told I could go to trial and tell my side of the story and get some weight off my chest and the worst would be manslaughter.”
Every time the murder charge was brought up, “they said it would be highly unlikely” that the state would get a murder conviction, Carr said repeatedly.
“I don’t remember anyone telling me there was a chance of me being convicted of murder,” he said.
Carr’s mother, Holly Carr of Hampden, told Murphy that she spoke to her son’s defense attorneys, F. David Walker IV of Portland and co-counsel Thomas Matzilevich of Bangor, and Victor Kraft, the private investigator they hired, and also was convinced that her son would not be convicted of murder.
“I didn’t even second-guess them,” Holly Carr said. “I didn’t even think about it.”
“I told him to go with the jury trial because I didn’t think he would get the murder charge,” Holly Carr said about the Dec. 15, 2010, settlement conference.
Kraft also testified at the hearing about giving Carr advice.
“I told him if they offered him five years or less he should take it and if it’s more, don’t,” the private investigator said. “I regret it now.”
Kraft met with Carr weekly after he was arrested and became a person he trusted, Carr testified. Kraft told Carr several times that “he had a strong case,” however, he became concerned after Carr didn’t seem to understand the consequences of the murder and manslaughter crimes he was charged with.
“He was getting third-hand information,” Kraft said. “I wanted them to make it crystal clear to him [by putting the charges and the plea deal in writing]. I wrote that more than once. He was confused and that is what I was trying to fix.”
Assistant Attorney General Donald W. Macomber asked Carr if he was charged with murder, and if the judge at the settlement agreement hearing explained that a murder conviction carries a penalty of 25 years to life, to which Carr answered, “Yes.”
Macomber said the postconviction hearing amounts to “sour grapes that he was convicted of murder, not manslaughter.”
Jonathan Siegel of Bangor, a clinical forensic psychologist who evaluated Carr, said he found him competent to stand trial but also pointed out that Carr had several learning disabilities, including attention deficit disorder, that were exacerbated by the stress of the plea agreement hearing where he had “10 to 15 minutes to review this settlement.”
“He was experiencing symptoms of post-traumatic stress disorder … at the time of the settlement,” Siegel said. “He had not slept well, he was on the verge of tears and was experiencing [nightmares].”
“He was asked to do something he was not a capable of doing without assistance,” the psychologist said later.
Tzovarras asked Carr questions about whether his lawyers gave him any advice about taking the plea agreement offered and if they informed him that he could enter a no contest plea and Carr answered “no.”
Earlier in the day, Carr’s first court-appointed attorney, Stephen Smith, testified that he was concerned about Carr’s mental capabilities and that is why he asked Siegel to evaluate him.
Siegel’s testimony was the last to happen Thursday. The hearing was tentatively scheduled to continue later this month.
Members of Carr’s family sat in the courtroom behind him. Surles’ grandparents Allen and Mary Ann Suddy, who adopted him when he was 10, sat behind Macomber.
If Carr is successful in his claim, Tzovarras would ask the court to vacate the murder conviction and allow Carr to enter the manslaughter agreement for seven years.
“He’s not looking for a new trial,” Tzovarras said.