MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 176 Docket: Aro-16-186 Argued: May 11, 2017 Decided: August 8, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
HORACE W. SALLEY III
v.
STATE OF MAINE
SAUFLEY, C.J.
[¶1] Horace W. Salley III appeals from a judgment entered by the court
(Aroostook County, Hunter, J.) denying his petition for post-conviction relief.
Because, contrary to the court’s conclusion, Salley did not waive his challenge
to counsel’s effectiveness regarding a specific witness’s testimony at trial, we
vacate the judgment and remand the matter for further consideration of that
post-conviction issue.
I. BACKGROUND
[¶2] In 2007, Salley was charged with gross sexual assault (Class A),
17-A M.R.S. § 253(1)(A) (2016); assault (Class D), 17-A M.R.S. § 207(1)(A)
(2016); and tampering with a victim (Class B), 17-A M.R.S. § 454(1-B)(A)(1)
(2016). The State alleged that Salley had committed gross sexual assault and 2
assault against his wife in September, October, or November 2006. A jury trial
was held over the course of three days in August 2008.
[¶3] During the trial, Salley’s wife testified that, at one point, she had
recanted; that is, she told others that she was lying about her report of Salley’s
assault and gross sexual assault. She testified that her recantation was not the
truth and that it was motivated by two considerations: (1) she had been
offered money in exchange for her refusal to testify against Salley, and (2) she
was afraid of Salley and had their young child in her care.
[¶4] In the presentation of his defense, Salley’s attorney called a
Department of Health and Human Services caseworker as a witness. As the
attorney later testified at the post-conviction hearing, his goal in calling this
witness in Salley’s defense was to demonstrate that only after the Department
threatened Salley’s wife with the termination of her parental rights did she
“recant” her recantation and reassert her earlier statement that Salley had
assaulted her. Salley’s wife had testified that in January 2007, after she
recanted her previous report of assault and sexual assault, the Department
removed her infant child from her care pursuant to a preliminary protection
order entered in a child protection proceeding. In examining the caseworker,
Salley’s trial counsel elicited testimony that a petition for termination of 3
parental rights to her older child was also filed sometime after December 1,
2006. In developing this testimony, Salley’s trial counsel intended to convince
the jury that Salley’s wife was not a credible witness and that she had
reasserted her accusations against him only to appease the Department.
[¶5] On cross-examination, the State inquired about the reasons for the
Department’s involvement with the mother as to the older child. The
caseworker testified that the Department had alleged neglect on her part
because she had allowed the child to have contact with Salley, who, due to his
prior behavior and his criminal history, was considered to pose a risk to the
child.
[¶6] The court stopped the questioning at that point, brought counsel to
sidebar, and inquired about the propriety of exploring Salley’s criminal
history. Salley’s counsel then objected to any hearsay. The court did not
formally rule on the objection that was made in response to the court’s
questions at sidebar; Salley’s counsel did not request a curative instruction or
move for a mistrial; and no further questions on the subject were posed to the
caseworker.
[¶7] The jury found Salley guilty of all three crimes, and a judgment of
conviction was entered. With new counsel, Salley appealed from the 4
judgment, but he did not raise an argument that the court had erred in its
response to the caseworker’s testimony on cross-examination regarding
Salley’s criminal history and involvement with the Department. We affirmed
the judgment in a memorandum of decision. See State v. Salley, Mem-09-193
(Dec. 1, 2009).
[¶8] On December 2, 2010, Salley filed a petition for post-conviction
review. The petition, as later amended, challenged the effectiveness of both
trial and appellate counsel. Pertinent to the matter before us, Salley argued
that he had been deprived of the effective assistance of trial counsel because
trial counsel “opened the door” to damaging evidence or failed to object to
testimony elicited on cross-examination.
[¶9] After a hearing at which Salley, his trial counsel, and his appellate
counsel testified, the court denied the petition for post-conviction relief. The
court first declined to consider the effectiveness of trial counsel in reacting to
the caseworker’s testimony on cross-examination because the court viewed
the issue as a claim of “[e]rror[] at the trial that . . . could have been raised on a
direct appeal.” 15 M.R.S. § 2128(1) (2016). The court found no ineffective
assistance by trial counsel on the other items challenged by Salley, and it
found that appellate counsel’s decision not to challenge on appeal the court’s 5
decisions regarding the caseworker’s testimony was not objectively
unreasonable and that there was no clear indication that Salley would have
prevailed on appeal if counsel had raised the hearsay issue.
[¶10] Salley timely petitioned for a certificate of probable cause
authorizing appellate review of the post-conviction judgment. We granted the
petition only as to whether the court erred in its determination that Salley, by
failing to raise the issue on appeal, had waived the claim of trial counsel’s
ineffectiveness in responding to the caseworker’s answers on
cross-examination.1 See 15 M.R.S. § 2131(1) (2016); M.R. App. P. 2, 19(a)(vi),
(c), (f).
II. DISCUSSION
[¶11] The post-conviction court determined that the “improperly
admitted evidence [of Salley’s criminal record] is a matter that could have
been raised on appeal.” Relying on 15 M.R.S. § 2128(1), the court determined
that the failure to raise the evidentiary issue on appeal constituted a waiver of
1 Accordingly, we do not disturb the post-conviction court’s determination regarding the effectiveness of appellate counsel. As the post-conviction court found, appellate counsel not unreasonably decided to forego an obvious error challenge because, given the trial court’s cautious and appropriate raising of the issue regarding evidence of Salley’s prior convictions, such a challenge would not likely succeed and could distract from or “water down” other appellate challenges. 6
the issue of trial counsel’s effectiveness on that evidentiary issue for purposes
of post-conviction review.
[¶12] The court correctly determined that section 2128 requires a
petitioner for post-conviction review to “demonstrate that any ground of
relief has not been waived.” 15 M.R.S. § 2128 (2016); see also Roberts v. State,
2014 ME 125, ¶ 21, 103 A.3d 1031. The statute specifically provides, “Errors
at the trial that have been or could have been raised on a direct appeal,
whether or not such an appeal was taken, may not be raised in an action for
post-conviction review under this chapter,” with a limited exception not
raised here. 15 M.R.S. § 2128(1).
[¶13] The court also correctly concluded that a person convicted of a
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 176 Docket: Aro-16-186 Argued: May 11, 2017 Decided: August 8, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
HORACE W. SALLEY III
v.
STATE OF MAINE
SAUFLEY, C.J.
[¶1] Horace W. Salley III appeals from a judgment entered by the court
(Aroostook County, Hunter, J.) denying his petition for post-conviction relief.
Because, contrary to the court’s conclusion, Salley did not waive his challenge
to counsel’s effectiveness regarding a specific witness’s testimony at trial, we
vacate the judgment and remand the matter for further consideration of that
post-conviction issue.
I. BACKGROUND
[¶2] In 2007, Salley was charged with gross sexual assault (Class A),
17-A M.R.S. § 253(1)(A) (2016); assault (Class D), 17-A M.R.S. § 207(1)(A)
(2016); and tampering with a victim (Class B), 17-A M.R.S. § 454(1-B)(A)(1)
(2016). The State alleged that Salley had committed gross sexual assault and 2
assault against his wife in September, October, or November 2006. A jury trial
was held over the course of three days in August 2008.
[¶3] During the trial, Salley’s wife testified that, at one point, she had
recanted; that is, she told others that she was lying about her report of Salley’s
assault and gross sexual assault. She testified that her recantation was not the
truth and that it was motivated by two considerations: (1) she had been
offered money in exchange for her refusal to testify against Salley, and (2) she
was afraid of Salley and had their young child in her care.
[¶4] In the presentation of his defense, Salley’s attorney called a
Department of Health and Human Services caseworker as a witness. As the
attorney later testified at the post-conviction hearing, his goal in calling this
witness in Salley’s defense was to demonstrate that only after the Department
threatened Salley’s wife with the termination of her parental rights did she
“recant” her recantation and reassert her earlier statement that Salley had
assaulted her. Salley’s wife had testified that in January 2007, after she
recanted her previous report of assault and sexual assault, the Department
removed her infant child from her care pursuant to a preliminary protection
order entered in a child protection proceeding. In examining the caseworker,
Salley’s trial counsel elicited testimony that a petition for termination of 3
parental rights to her older child was also filed sometime after December 1,
2006. In developing this testimony, Salley’s trial counsel intended to convince
the jury that Salley’s wife was not a credible witness and that she had
reasserted her accusations against him only to appease the Department.
[¶5] On cross-examination, the State inquired about the reasons for the
Department’s involvement with the mother as to the older child. The
caseworker testified that the Department had alleged neglect on her part
because she had allowed the child to have contact with Salley, who, due to his
prior behavior and his criminal history, was considered to pose a risk to the
child.
[¶6] The court stopped the questioning at that point, brought counsel to
sidebar, and inquired about the propriety of exploring Salley’s criminal
history. Salley’s counsel then objected to any hearsay. The court did not
formally rule on the objection that was made in response to the court’s
questions at sidebar; Salley’s counsel did not request a curative instruction or
move for a mistrial; and no further questions on the subject were posed to the
caseworker.
[¶7] The jury found Salley guilty of all three crimes, and a judgment of
conviction was entered. With new counsel, Salley appealed from the 4
judgment, but he did not raise an argument that the court had erred in its
response to the caseworker’s testimony on cross-examination regarding
Salley’s criminal history and involvement with the Department. We affirmed
the judgment in a memorandum of decision. See State v. Salley, Mem-09-193
(Dec. 1, 2009).
[¶8] On December 2, 2010, Salley filed a petition for post-conviction
review. The petition, as later amended, challenged the effectiveness of both
trial and appellate counsel. Pertinent to the matter before us, Salley argued
that he had been deprived of the effective assistance of trial counsel because
trial counsel “opened the door” to damaging evidence or failed to object to
testimony elicited on cross-examination.
[¶9] After a hearing at which Salley, his trial counsel, and his appellate
counsel testified, the court denied the petition for post-conviction relief. The
court first declined to consider the effectiveness of trial counsel in reacting to
the caseworker’s testimony on cross-examination because the court viewed
the issue as a claim of “[e]rror[] at the trial that . . . could have been raised on a
direct appeal.” 15 M.R.S. § 2128(1) (2016). The court found no ineffective
assistance by trial counsel on the other items challenged by Salley, and it
found that appellate counsel’s decision not to challenge on appeal the court’s 5
decisions regarding the caseworker’s testimony was not objectively
unreasonable and that there was no clear indication that Salley would have
prevailed on appeal if counsel had raised the hearsay issue.
[¶10] Salley timely petitioned for a certificate of probable cause
authorizing appellate review of the post-conviction judgment. We granted the
petition only as to whether the court erred in its determination that Salley, by
failing to raise the issue on appeal, had waived the claim of trial counsel’s
ineffectiveness in responding to the caseworker’s answers on
cross-examination.1 See 15 M.R.S. § 2131(1) (2016); M.R. App. P. 2, 19(a)(vi),
(c), (f).
II. DISCUSSION
[¶11] The post-conviction court determined that the “improperly
admitted evidence [of Salley’s criminal record] is a matter that could have
been raised on appeal.” Relying on 15 M.R.S. § 2128(1), the court determined
that the failure to raise the evidentiary issue on appeal constituted a waiver of
1 Accordingly, we do not disturb the post-conviction court’s determination regarding the effectiveness of appellate counsel. As the post-conviction court found, appellate counsel not unreasonably decided to forego an obvious error challenge because, given the trial court’s cautious and appropriate raising of the issue regarding evidence of Salley’s prior convictions, such a challenge would not likely succeed and could distract from or “water down” other appellate challenges. 6
the issue of trial counsel’s effectiveness on that evidentiary issue for purposes
of post-conviction review.
[¶12] The court correctly determined that section 2128 requires a
petitioner for post-conviction review to “demonstrate that any ground of
relief has not been waived.” 15 M.R.S. § 2128 (2016); see also Roberts v. State,
2014 ME 125, ¶ 21, 103 A.3d 1031. The statute specifically provides, “Errors
at the trial that have been or could have been raised on a direct appeal,
whether or not such an appeal was taken, may not be raised in an action for
post-conviction review under this chapter,” with a limited exception not
raised here. 15 M.R.S. § 2128(1).
[¶13] The court also correctly concluded that a person convicted of a
crime may, in a direct appeal from a judgment, raise arguments that the court
erred in admitting challenged evidence at trial. See 15 M.R.S. § 2115 (2016).
For instance, a convicted person may appeal from a court decision regarding
the admissibility of evidence, see, e.g., State v. Pillsbury, 2017 ME 92, ¶¶ 15,
22-24, --- A.3d ---, or a decision denying a motion for a mistrial if unduly
prejudicial evidence is erroneously put before the jury, see, e.g., State v. Butts,
372 A.2d 1041, 1042 (Me. 1977). Appellate review on those issues addresses 7
asserted error on the part of the trial court. See State v. Daluz, 2016 ME 102,
¶ 60, 143 A.3d 800; State v. Mair, 670 A.2d 910, 911-12 (Me. 1996).
[¶14] Unlike claims of error in court rulings, however, claims of
ineffective assistance of counsel cannot be raised on direct appeal. See Reese
v. State, 2017 ME 40, ¶ 6 n.4, 157 A.3d 215. Because Salley could not have
challenged the actions of trial counsel on direct appeal, he cannot have waived
that claim for purposes of section 2128. Thus, whether or not the trial court’s
actions were challenged on appeal, trial counsel’s conduct and decisions may
be challenged through an ineffective assistance claim in a post-conviction
proceeding. See U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668,
686 (1984); Roberts, 2014 ME 125, ¶ 21, 103 A.3d 1031.
[¶15] Simply put, because ineffectiveness of counsel cannot be raised in
a direct appeal, failure to do so cannot be deemed a waiver of such a claim.
See 15 M.R.S. § 2128(1); Reese, 2017 ME 40, ¶ 6 n.4, 157 A.3d 215. A
post-conviction petitioner may raise the issue of trial counsel’s effectiveness
regarding a matter of evidence even if the argument that the court erred in
ruling on an underlying evidentiary issue could have been, but was not, raised
on appeal. See Roberts, 2014 ME 125, ¶ 21, 103 A.3d 1031. 8
[¶16] Here, the issue before the court on post-conviction review was
whether trial counsel was ineffective for failing to raise a timely objection or
seek a curative instruction or a mistrial when the evidentiary issue arose.
That issue—the effectiveness of trial counsel—could not have been raised on
direct appeal, see Reese, 2017 ME 40, ¶ 6 n.4, 157 A.3d 215, and therefore had
not been waived within the meaning of 15 M.R.S. § 2128(1) as an issue that
“could have been raised on a direct appeal.” See also U.S. Const. amend. VI;
15 M.R.S. § 2128-A (2016); Strickland, 466 U.S. at 686, 697-98; Roberts, 2014
ME 125, ¶ 21, 103 A.3d 1031.
[¶17] Because the trial court, relying on the State’s waiver theory, did
not reach Salley’s argument regarding trial counsel’s ineffectiveness in
responding to the testimony of the Department caseworker, we must remand
for consideration of that claim. It was for the post-conviction trial court to
determine whether trial counsel’s actions and strategic decisions fell below an
objective standard of reasonableness and resulted in prejudice to Salley. See
Middleton v. State, 2015 ME 164, ¶ 12, 129 A.3d 962; see also Strickland, 466
U.S. at 689 (stating that “the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound
trial strategy” (quotation marks omitted)). 9
[¶18] Accordingly, we vacate the judgment and remand the matter for
the court to consider the claim that trial counsel provided ineffective
assistance with respect to the caseworker’s testimony by determining
whether trial counsel’s performance was deficient, resulting in prejudice to
Salley. See Middleton, 2015 ME 164, ¶ 12, 129 A.3d 962.
The entry is:
Judgment vacated. Remanded for the court to consider the claim that trial counsel provided ineffective assistance with respect to the caseworker’s testimony.
David Paris, Esq. (orally), Bath, for appellant Horace W. Salley III
Todd R. Collins, District Attorney (orally), Prosecutorial District 8, Caribou, for appellee State of Maine
Aroostook Superior Court docket number CR-2011-07 FOR CLERK REFERENCE ONLY