MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 162 Docket: Aro-15-333 Argued: February 6, 2017 Decided: July 20, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
JAMES A. PHILBROOK
v.
STATE OF MAINE
SAUFLEY, C.J.
[¶1] James A. Philbrook appeals from a judgment in which the court
(Aroostook County, Hunter, J.) denied his petition for post-conviction review
seeking relief from a judgment of conviction entered after a jury found him
guilty of theft by misapplication of property (Class B), 17-A M.R.S.
§ 358(1)(B)(1) (2016), and securities fraud (Class C), 32 M.R.S. §§ 16501,
16508 (2012).1 He contends that the evidence presented at his
post-conviction hearing compelled the court to find that defense counsel’s
representation during plea negotiations, and counsel’s illness and inattention
1 Title 32 M.R.S. § 16508 has since been amended. See P.L. 2013, ch. 39, § 2 (effective Oct. 9,
2013) (codified at 32 M.R.S. § 16508(1) (2016)). 2
at trial, deprived Philbrook of the effective assistance of counsel, resulting in
prejudice. We affirm the judgment.
I. BACKGROUND
[¶2] Philbrook was convicted of theft by misapplication of property and
securities fraud upon evidence that he persuaded his longtime insurance and
estate planning clients to transfer a total of $195,000 to his account for
investment in a Pay-Per-View event and another investment he vaguely
described as having to do with student loans. See State v. Philbrook, 2013 ME
86, ¶¶ 1-6, 81 A.3d 326. Instead of investing their money, however, Philbrook
used it to repay money that his son had embezzled from his employer and to
cover Philbrook’s own ongoing expenses. Id. ¶¶ 5-6. He did not repay to his
clients any of the $195,000 that they had invested. Id. ¶ 7.
[¶3] The jury found Philbrook guilty of both charged counts. Id. ¶¶ 1, 8.
The court entered a judgment of conviction and sentenced Philbrook to eight
years’ imprisonment for theft by misapplication of property, with all but three
years suspended, and three years of probation with a special condition that he
pay $195,000 in restitution, and to three years’ imprisonment for securities
fraud, to run concurrently with the theft sentence. Id. ¶ 8. Philbrook appealed
to us from that judgment and argued, among other things, that the jury 3
instruction provided by the trial court had omitted a necessary element of the
crime of theft. Id. ¶¶ 8-9. We concluded that the court had not erred, and we
affirmed the judgment in its entirety. Id. ¶¶ 1, 9.
[¶4] On November 7, 2013, Philbrook filed his petition for
post-conviction review alleging the ineffective assistance of his trial counsel.
See 15 M.R.S. § 2129 (2016). In its judgment, entered on June 8, 2015, the
court found that Philbrook “failed to prove . . . that his trial counsel did not
communicate to him the State’s offer of a plea agreement and that there was a
reasonable probability that he would have accepted it.” With respect to
counsel’s assistance at trial, the court found that, although defense counsel
was coughing and at times felt fatigued and inattentive or lightheaded,
Philbrook failed to connect counsel’s ailment to any particular deficiency in
performance or to identify any prejudice to his case resulting from such a
deficiency. The court concluded that Philbrook had waived any argument
regarding the jury instruction on theft because he raised the issue on direct
appeal and we resolved the question in favor of the State. See 15 M.R.S.
§ 2128(1) (2016) (“Errors at the trial that have been . . . raised on a direct 4
appeal . . . may not be raised in an action for post-conviction review under this
chapter . . . .”); Philbrook, 2013 ME 86, ¶ 9, 81 A.3d 326.2
[¶5] Philbrook did not move for further findings of fact. See M.R.U.
Crim. P. 23(c). He filed a notice of appeal and submitted a memorandum
seeking a certificate of probable cause. See 15 M.R.S. § 2131(1) (2016); M.R.
App. P. 19(a)(vi), (c). We issued a certificate of probable cause, and we now
consider Philbrook’s appeal. See M.R. App. P. 19(f).
II. DISCUSSION
A. Burden of Proof and Standard of Review
[¶6] Claims of ineffective assistance of counsel raised on
post-conviction review “are governed by the two-part test outlined in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).” Middleton v. State, 2015 ME 164, ¶ 12, 129 A.3d 962. Applying that
test, a petitioner bears the burden, at the post-conviction trial, of proving the
following: (1) “‘counsel’s representation fell below an objective standard of
reasonableness,’” and (2) “the deficient representation resulted in prejudice.”
Id. (quoting Strickland, 466 U.S. at 688). A court need not “address both
2 We agree with the court on this point and do not discuss the issue further. 5
components of the inquiry if the defendant makes an insufficient showing on
one.” Strickland, 466 U.S. at 697 (quotation marks omitted).
[¶7] As to the first part of the Strickland test, counsel’s representation
of a defendant falls below the objective standard of reasonableness if it falls
“below what might be expected from an ordinary fallible attorney.” Francis v.
State, 2007 ME 148, ¶ 4, 938 A.2d 10 (quotation marks omitted). “Judicial
inquiry into the effectiveness of representation is ‘highly deferential.’”
Middleton, 2015 ME 164, ¶ 13, 129 A.3d 962 (quoting Strickland, 466 U.S. at
689). “The post-conviction court must make every effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. (quotation marks omitted). “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. (quotation marks omitted).
[¶8] To establish prejudice—the second part of the Strickland test—the
post-conviction petitioner must prove that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding 6
would have been different,” meaning that the “ineffective assistance of counsel
rose to the level of compromising the reliability of the conviction and
undermining confidence in it.” Theriault v. State, 2015 ME 137, ¶¶ 19, 25, 125
A.3d 1163 (quotation marks omitted). A conviction may be “unreliable and
not worthy of confidence,” thus satisfying the “reasonable probability” test,
even without proof that a different outcome was “more likely than not,” as the
now superseded “outcome determinative” test would require. Id. ¶¶ 19-22,
25 (quotation marks omitted).
[¶9] In reviewing a post-conviction court’s findings on appeal, the facts
found regarding both the underlying trial and the post-conviction hearing are
viewed in the light most favorable to the post-conviction court’s judgment.
Lamarre v. State, 2013 ME 110, ¶ 2, 82 A.3d 845; Heon v. State, 2007 ME 131,
¶ 5, 931 A.2d 1068.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 162 Docket: Aro-15-333 Argued: February 6, 2017 Decided: July 20, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
JAMES A. PHILBROOK
v.
STATE OF MAINE
SAUFLEY, C.J.
[¶1] James A. Philbrook appeals from a judgment in which the court
(Aroostook County, Hunter, J.) denied his petition for post-conviction review
seeking relief from a judgment of conviction entered after a jury found him
guilty of theft by misapplication of property (Class B), 17-A M.R.S.
§ 358(1)(B)(1) (2016), and securities fraud (Class C), 32 M.R.S. §§ 16501,
16508 (2012).1 He contends that the evidence presented at his
post-conviction hearing compelled the court to find that defense counsel’s
representation during plea negotiations, and counsel’s illness and inattention
1 Title 32 M.R.S. § 16508 has since been amended. See P.L. 2013, ch. 39, § 2 (effective Oct. 9,
2013) (codified at 32 M.R.S. § 16508(1) (2016)). 2
at trial, deprived Philbrook of the effective assistance of counsel, resulting in
prejudice. We affirm the judgment.
I. BACKGROUND
[¶2] Philbrook was convicted of theft by misapplication of property and
securities fraud upon evidence that he persuaded his longtime insurance and
estate planning clients to transfer a total of $195,000 to his account for
investment in a Pay-Per-View event and another investment he vaguely
described as having to do with student loans. See State v. Philbrook, 2013 ME
86, ¶¶ 1-6, 81 A.3d 326. Instead of investing their money, however, Philbrook
used it to repay money that his son had embezzled from his employer and to
cover Philbrook’s own ongoing expenses. Id. ¶¶ 5-6. He did not repay to his
clients any of the $195,000 that they had invested. Id. ¶ 7.
[¶3] The jury found Philbrook guilty of both charged counts. Id. ¶¶ 1, 8.
The court entered a judgment of conviction and sentenced Philbrook to eight
years’ imprisonment for theft by misapplication of property, with all but three
years suspended, and three years of probation with a special condition that he
pay $195,000 in restitution, and to three years’ imprisonment for securities
fraud, to run concurrently with the theft sentence. Id. ¶ 8. Philbrook appealed
to us from that judgment and argued, among other things, that the jury 3
instruction provided by the trial court had omitted a necessary element of the
crime of theft. Id. ¶¶ 8-9. We concluded that the court had not erred, and we
affirmed the judgment in its entirety. Id. ¶¶ 1, 9.
[¶4] On November 7, 2013, Philbrook filed his petition for
post-conviction review alleging the ineffective assistance of his trial counsel.
See 15 M.R.S. § 2129 (2016). In its judgment, entered on June 8, 2015, the
court found that Philbrook “failed to prove . . . that his trial counsel did not
communicate to him the State’s offer of a plea agreement and that there was a
reasonable probability that he would have accepted it.” With respect to
counsel’s assistance at trial, the court found that, although defense counsel
was coughing and at times felt fatigued and inattentive or lightheaded,
Philbrook failed to connect counsel’s ailment to any particular deficiency in
performance or to identify any prejudice to his case resulting from such a
deficiency. The court concluded that Philbrook had waived any argument
regarding the jury instruction on theft because he raised the issue on direct
appeal and we resolved the question in favor of the State. See 15 M.R.S.
§ 2128(1) (2016) (“Errors at the trial that have been . . . raised on a direct 4
appeal . . . may not be raised in an action for post-conviction review under this
chapter . . . .”); Philbrook, 2013 ME 86, ¶ 9, 81 A.3d 326.2
[¶5] Philbrook did not move for further findings of fact. See M.R.U.
Crim. P. 23(c). He filed a notice of appeal and submitted a memorandum
seeking a certificate of probable cause. See 15 M.R.S. § 2131(1) (2016); M.R.
App. P. 19(a)(vi), (c). We issued a certificate of probable cause, and we now
consider Philbrook’s appeal. See M.R. App. P. 19(f).
II. DISCUSSION
A. Burden of Proof and Standard of Review
[¶6] Claims of ineffective assistance of counsel raised on
post-conviction review “are governed by the two-part test outlined in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).” Middleton v. State, 2015 ME 164, ¶ 12, 129 A.3d 962. Applying that
test, a petitioner bears the burden, at the post-conviction trial, of proving the
following: (1) “‘counsel’s representation fell below an objective standard of
reasonableness,’” and (2) “the deficient representation resulted in prejudice.”
Id. (quoting Strickland, 466 U.S. at 688). A court need not “address both
2 We agree with the court on this point and do not discuss the issue further. 5
components of the inquiry if the defendant makes an insufficient showing on
one.” Strickland, 466 U.S. at 697 (quotation marks omitted).
[¶7] As to the first part of the Strickland test, counsel’s representation
of a defendant falls below the objective standard of reasonableness if it falls
“below what might be expected from an ordinary fallible attorney.” Francis v.
State, 2007 ME 148, ¶ 4, 938 A.2d 10 (quotation marks omitted). “Judicial
inquiry into the effectiveness of representation is ‘highly deferential.’”
Middleton, 2015 ME 164, ¶ 13, 129 A.3d 962 (quoting Strickland, 466 U.S. at
689). “The post-conviction court must make every effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. (quotation marks omitted). “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. (quotation marks omitted).
[¶8] To establish prejudice—the second part of the Strickland test—the
post-conviction petitioner must prove that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding 6
would have been different,” meaning that the “ineffective assistance of counsel
rose to the level of compromising the reliability of the conviction and
undermining confidence in it.” Theriault v. State, 2015 ME 137, ¶¶ 19, 25, 125
A.3d 1163 (quotation marks omitted). A conviction may be “unreliable and
not worthy of confidence,” thus satisfying the “reasonable probability” test,
even without proof that a different outcome was “more likely than not,” as the
now superseded “outcome determinative” test would require. Id. ¶¶ 19-22,
25 (quotation marks omitted).
[¶9] In reviewing a post-conviction court’s findings on appeal, the facts
found regarding both the underlying trial and the post-conviction hearing are
viewed in the light most favorable to the post-conviction court’s judgment.
Lamarre v. State, 2013 ME 110, ¶ 2, 82 A.3d 845; Heon v. State, 2007 ME 131,
¶ 5, 931 A.2d 1068. Because a petitioner bears the burden of proof at the
post-conviction hearing, “we will not disturb the court’s determination that
[the petitioner] failed to satisfy his burden unless the evidence compelled the
court to find to the contrary.” Laferriere v. State, 1997 ME 169, ¶ 6, 697 A.2d
1301 (quotation marks omitted); see Heon, 2007 ME 131, ¶ 8, 931 A.2d 1068.
“On review after a hearing in which the court has stated its findings, and there
has been no motion for further findings, we will infer that the court found all 7
the facts necessary to support its judgment if those inferred findings are
supportable by evidence in the record.” State v. Connor, 2009 ME 91, ¶ 9, 977
A.2d 1003. Only legal conclusions reached on post-conviction review are
reviewed de novo. See Fortune v. State, 2017 ME 61, ¶ 12, 158 A.3d 512.
B. Review of the Post-Conviction Judgment
[¶10] We now consider whether the evidence presented on
post-conviction review compelled the court to find ineffectiveness, either
(1) during plea negotiations or (2) at trial, that resulted in prejudice.
1. Effectiveness of Assistance During Plea Negotiations
[¶11] A defendant’s Sixth Amendment right to counsel “extends to the
plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012); see
Laferriere, 1997 ME 169, ¶¶ 5, 7, 697 A.2d 1301. With respect to the decision
whether to accept a plea offer, “an erroneous strategic prediction about the
outcome of a trial is not necessarily deficient performance.” Lafler, 566 U.S. at
174. When a defendant alleges that the rejection of a proposed plea resulted
from the ineffectiveness of counsel, the defendant must show that, but for the
ineffective assistance of counsel, there is a “reasonable probability” that
• The plea offer would have been presented to the court, meaning that the defendant would have accepted the plea and the prosecution would not have withdrawn it for other reasons;
• The court would have accepted the terms presented; and
• The terms of the offer would have provided for a less severe conviction or sentence than the conviction or sentence ultimately reached.
Id. at 164.
[¶12] Here, the court found—with evidentiary support—that
(1) counsel did communicate to Philbrook the plea offer from the State
involving a cap of two years in prison, (2) Philbrook would not agree to an
offer that would require prison time and would accept only a short sentence
to county jail, (3) Philbrook never stated or testified that he would have
agreed to accept the offer, and (4) counsel and Philbrook shared a level of
optimism that informed their strategy in rejecting the offer. Although there
was evidence that counsel did not forward to Philbrook each letter he
exchanged with the State, the evidence does not compel a finding that, if
Philbrook had seen those communications instead of just conversing about
them by telephone, there was “a reasonable probability that . . . [he] would
have accepted the plea.” Id. Accordingly, the court was not compelled to find
that Philbrook established deficient representation or prejudice during plea
negotiations. See Strickland, 466 U.S. at 687-96; Laferriere, 1997 ME 169, ¶ 6,
697 A.2d 1301. 9
2. Effectiveness of Assistance During Trial
[¶13] Philbrook next contends that his counsel, due to illness, failed to
object to leading questions. Philbrook argues that he suffered prejudice
because the guilty verdict and judgment of conviction are “unreliable and not
worthy of confidence,” Theriault, 2015 ME 137, ¶ 25, 125 A.3d 1163, due to
counsel’s alleged unresponsiveness or inattention. Philbrook also argues that
prejudice may be legally presumed because “counsel’s ineffectiveness
amounts to the constructive denial of the assistance of counsel.” Id. ¶ 17
(quotation marks omitted). Philbrook did not raise the issue of presumed
prejudice with the trial court, however, and therefore we review that issue
only for obvious error. See M.R.U. Crim. P. 52(b); State v. True, 2017 ME 2,
¶ 15 & n.6, 153 A.3d 106.
[¶14] Although counsel was ill during the trial, the court was not
persuaded that the illness resulted in ineffectiveness, including prejudice to
Philbrook’s case. The court specifically articulated the “reasonable
probability” test—not the “outcome determinative” test—as the applicable
test and found that Philbrook had failed to establish prejudice, see Theriault,
2015 ME 137, ¶¶ 19-25, 125 A.3d 1163. The court’s judgment indicates that it
“observed nothing that would have caused it concern regarding trial counsel’s 10
ability to perform his professional responsibilities at trial of this matter,” and
the trial transcript demonstrates that counsel presented an opening
statement, actively cross-examined and re-cross-examined witnesses, directly
examined Philbrook, and presented a cogent closing argument.
[¶15] Thus, even if the court did not specifically use the words
“unreliable and not worthy of confidence,” id. ¶ 25, we infer from the court’s
judgment that it was not persuaded that the conviction was unreliable, see
Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003. Because Philbrook has not indicated
that any changes in the content of testimony would have resulted from
objections to the form of the prosecutor’s questions, and has not argued that
any other specific consequences flowed from counsel’s illness or alleged
inattention, the record does not compel a finding of ineffectiveness or that any
ineffectiveness resulted in prejudice. See Laferriere, 1997 ME 169, ¶ 6, 697
A.2d 1301. Absent a finding that counsel’s representation was ineffective,
there was no “constructive denial” of the assistance of counsel, and therefore
the court did not commit obvious error in not applying that concept.
Theriault, 2015 ME 137, ¶ 17, 125 A.3d 1163 (quotation marks omitted); see
M.R.U. Crim. P. 52(b); True, 2017 ME 2, ¶ 15, 153 A.3d 106. 11
The entry is:
Judgment affirmed.
Sarah LeClaire, Esq. (orally), Presque Isle, for appellant James A. Philbrook
Janet T. Mills, Attorney General, and Denis Culley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Aroostook County Superior Court docket number CR-2013-198 FOR CLERK REFERENCE ONLY