MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 92 Docket: Fra-17-502 Argued: June 12, 2018 Decided: July 5, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
JOHN FAHNLEY
v.
STATE OF MAINE
JABAR, J.
[¶1] The State of Maine appeals from a judgment of the trial court
(Franklin County, Mills, J.) granting John Fahnley’s petition for post-conviction
review and, pursuant to 15 M.R.S. § 2130 (2017), vacating his conviction of
sexual abuse of a minor (Class C), 17-A M.R.S. § 254(1)(A-2) (2017). The court
found that Fahnley had been deprived of the effective assistance of counsel
during his criminal trial. Because we conclude that the court’s factual findings
are supported by competent record evidence, we affirm the judgment. 2
I. BACKGROUND
[¶2] The post-conviction court made the following factual findings,
which are supported by competent evidence in the record. See Middleton
v. State, 2015 ME 164, ¶ 2, 129 A.3d 962.
[¶3] In 2013, Fahnley was indicted for one count of gross sexual assault
(Class A), 17-A M.R.S. § 253(1)(A) (2017), and two counts of sexual abuse of a
minor (Class C), 17-A M.R.S. § 254(1)(A-2). In 2014, a jury found Fahnley guilty
of one count of sexual abuse of a minor and not guilty of the other two counts.
We affirmed Fahnley’s conviction in 2015, State v. Fahnley, 2015 ME 82, ¶ 1,
119 A.3d 727, after which Fahnley filed a petition for post-conviction review in
the Superior Court, alleging that he was deprived of the effective assistance of
counsel at trial. In his petition, Fahnley asserted that he received ineffective
assistance because trial counsel (1) failed to present exculpatory evidence,
including medical records and credit card records; (2) failed to present
witnesses for the defense; and (3) notified him in a letter shortly before trial
that certain evidence would be presented, but then failed to present the
evidence and failed to discuss that decision with him.
[¶4] After a hearing, the court granted Fahnley’s petition for
post-conviction review and vacated the conviction of sexual abuse of a minor 3
because it found that Fahnley had been deprived of the effective assistance of
counsel. In its order, the court made the following findings, all of which are
supported by evidence presented at the post-conviction hearing.
[¶5] Fahnley, a musician and photographer, was once in a band with the
alleged victim’s father. The allegations against Fahnley involved sexual contact
with the alleged victim in Fahnley’s Maine home. At trial, the alleged victim
testified that he, his brother, and Fahnley drove to Fahnley’s house in Madrid,
Maine, from the alleged victim’s family home in western Massachusetts in
mid-August of 2008, sometime between August 9th and September 3rd.
Fahnley then drove the boys back to Massachusetts, where the alleged victim
got into an argument with his mother, so he returned to Maine alone with
Fahnley. He testified that it was at this point—when he was alone with Fahnley
in Maine during the middle of August of 2008—that the sexual abuse
underlying the Class C conviction occurred.
[¶6] During the two years before trial, Fahnley “performed considerable
legwork” in the preparation of his case. He obtained his medical and financial
records and identified potential witnesses, all of which would have been
relevant to establish his whereabouts during August of 2008—the time period
that was primarily relevant to the charges against him. In the weeks leading up 4
to trial, Fahnley “became distressed because trial counsel was not doing what
[he] had requested” and ultimately engaged the services of another attorney,
who was unable to represent Fahnley due to his inexperience in the area of
criminal law.
[¶7] In January of 2014, a few weeks before the trial was set to begin,
trial counsel addressed Fahnley’s concerns in a letter. Among other things, trial
counsel wrote that he intended to address the alleged victim’s inconsistent
statements, intended to use Fahnley’s medical records, intended to introduce
photographs to show that the alleged victim had not been alone in Maine with
Fahnley, and intended to introduce Fahnley’s credit card billing records to
undermine the alleged victim’s timeline of events. He also wrote that he was
attempting to speak to Fahnley’s doctor in order to determine what potential
testimony she could offer on his behalf.
[¶8] During the alleged victim’s testimony at trial, he made statements
that significantly contradicted the statements he had made during his initial
interview with a Massachusetts detective, when he first reported the abuse in
2011, and those statements he made during a subsequent interview conducted
by a Franklin County detective in Maine. Although trial counsel had concluded
that the State’s case would be based entirely on the alleged victim’s credibility 5
because of the absence of forensic evidence or witnesses to the alleged abuse,
counsel merely refreshed the alleged victim’s recollection with the inconsistent
statements. Despite the pronounced and substantive disparities between the
statements, trial counsel did not attempt to have the prior inconsistent
statements read into the record or otherwise admitted in evidence.
[¶9] Trial counsel also listed Fahnley’s mother’s portfolio manager on
the defense’s witness list but did not call him to testify at trial. According to the
portfolio manager’s testimony at the post-conviction proceeding, he told
Fahnley that Fahnley’s financial support of the alleged victim’s family—which
had been occurring for years in the range of $2,000 to $4,000 monthly—needed
to cease because it was not sustainable. The alleged victim’s family was “angry
and under financial strain” when Fahnley stopped the payments because the
financial support from Fahnley was the family’s only source of income. Despite
his presence in court on the first day of the trial and his willingness to testify,
the portfolio manager was not called to testify at the underlying criminal trial
regarding the specifics of Fahnley’s financial situation or the impetus for the
cessation of financial contributions to the alleged victim’s family.
[¶10] Two other witnesses could have presented partial alibis for
Fahnley during August of 2008. Neither was listed as a potential witness or 6
called at trial, but both were available to testify about Fahnley’s whereabouts
during August of 2008. Although counsel did speak with one of the witnesses,
he failed to interview the other. Trial counsel decided not to introduce any of
this evidence because he was concerned that an “imperfect alibi”—where
neither witness could account for all of Fahnley’s time during August of 2008—
would undermine the defense.
[¶11] Counsel also did not present credit card billing records that, along
with the dates of Fahnley’s frequent medical appointments, would have
accounted for Fahnley’s whereabouts on many of the days during August of
2008. The credit card records would have shown Fahnley’s travels to Boston
for music and photography and in and around Maine. The records would have
shown no trips to the alleged victim’s family home in western Massachusetts in
mid-August.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 92 Docket: Fra-17-502 Argued: June 12, 2018 Decided: July 5, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
JOHN FAHNLEY
v.
STATE OF MAINE
JABAR, J.
[¶1] The State of Maine appeals from a judgment of the trial court
(Franklin County, Mills, J.) granting John Fahnley’s petition for post-conviction
review and, pursuant to 15 M.R.S. § 2130 (2017), vacating his conviction of
sexual abuse of a minor (Class C), 17-A M.R.S. § 254(1)(A-2) (2017). The court
found that Fahnley had been deprived of the effective assistance of counsel
during his criminal trial. Because we conclude that the court’s factual findings
are supported by competent record evidence, we affirm the judgment. 2
I. BACKGROUND
[¶2] The post-conviction court made the following factual findings,
which are supported by competent evidence in the record. See Middleton
v. State, 2015 ME 164, ¶ 2, 129 A.3d 962.
[¶3] In 2013, Fahnley was indicted for one count of gross sexual assault
(Class A), 17-A M.R.S. § 253(1)(A) (2017), and two counts of sexual abuse of a
minor (Class C), 17-A M.R.S. § 254(1)(A-2). In 2014, a jury found Fahnley guilty
of one count of sexual abuse of a minor and not guilty of the other two counts.
We affirmed Fahnley’s conviction in 2015, State v. Fahnley, 2015 ME 82, ¶ 1,
119 A.3d 727, after which Fahnley filed a petition for post-conviction review in
the Superior Court, alleging that he was deprived of the effective assistance of
counsel at trial. In his petition, Fahnley asserted that he received ineffective
assistance because trial counsel (1) failed to present exculpatory evidence,
including medical records and credit card records; (2) failed to present
witnesses for the defense; and (3) notified him in a letter shortly before trial
that certain evidence would be presented, but then failed to present the
evidence and failed to discuss that decision with him.
[¶4] After a hearing, the court granted Fahnley’s petition for
post-conviction review and vacated the conviction of sexual abuse of a minor 3
because it found that Fahnley had been deprived of the effective assistance of
counsel. In its order, the court made the following findings, all of which are
supported by evidence presented at the post-conviction hearing.
[¶5] Fahnley, a musician and photographer, was once in a band with the
alleged victim’s father. The allegations against Fahnley involved sexual contact
with the alleged victim in Fahnley’s Maine home. At trial, the alleged victim
testified that he, his brother, and Fahnley drove to Fahnley’s house in Madrid,
Maine, from the alleged victim’s family home in western Massachusetts in
mid-August of 2008, sometime between August 9th and September 3rd.
Fahnley then drove the boys back to Massachusetts, where the alleged victim
got into an argument with his mother, so he returned to Maine alone with
Fahnley. He testified that it was at this point—when he was alone with Fahnley
in Maine during the middle of August of 2008—that the sexual abuse
underlying the Class C conviction occurred.
[¶6] During the two years before trial, Fahnley “performed considerable
legwork” in the preparation of his case. He obtained his medical and financial
records and identified potential witnesses, all of which would have been
relevant to establish his whereabouts during August of 2008—the time period
that was primarily relevant to the charges against him. In the weeks leading up 4
to trial, Fahnley “became distressed because trial counsel was not doing what
[he] had requested” and ultimately engaged the services of another attorney,
who was unable to represent Fahnley due to his inexperience in the area of
criminal law.
[¶7] In January of 2014, a few weeks before the trial was set to begin,
trial counsel addressed Fahnley’s concerns in a letter. Among other things, trial
counsel wrote that he intended to address the alleged victim’s inconsistent
statements, intended to use Fahnley’s medical records, intended to introduce
photographs to show that the alleged victim had not been alone in Maine with
Fahnley, and intended to introduce Fahnley’s credit card billing records to
undermine the alleged victim’s timeline of events. He also wrote that he was
attempting to speak to Fahnley’s doctor in order to determine what potential
testimony she could offer on his behalf.
[¶8] During the alleged victim’s testimony at trial, he made statements
that significantly contradicted the statements he had made during his initial
interview with a Massachusetts detective, when he first reported the abuse in
2011, and those statements he made during a subsequent interview conducted
by a Franklin County detective in Maine. Although trial counsel had concluded
that the State’s case would be based entirely on the alleged victim’s credibility 5
because of the absence of forensic evidence or witnesses to the alleged abuse,
counsel merely refreshed the alleged victim’s recollection with the inconsistent
statements. Despite the pronounced and substantive disparities between the
statements, trial counsel did not attempt to have the prior inconsistent
statements read into the record or otherwise admitted in evidence.
[¶9] Trial counsel also listed Fahnley’s mother’s portfolio manager on
the defense’s witness list but did not call him to testify at trial. According to the
portfolio manager’s testimony at the post-conviction proceeding, he told
Fahnley that Fahnley’s financial support of the alleged victim’s family—which
had been occurring for years in the range of $2,000 to $4,000 monthly—needed
to cease because it was not sustainable. The alleged victim’s family was “angry
and under financial strain” when Fahnley stopped the payments because the
financial support from Fahnley was the family’s only source of income. Despite
his presence in court on the first day of the trial and his willingness to testify,
the portfolio manager was not called to testify at the underlying criminal trial
regarding the specifics of Fahnley’s financial situation or the impetus for the
cessation of financial contributions to the alleged victim’s family.
[¶10] Two other witnesses could have presented partial alibis for
Fahnley during August of 2008. Neither was listed as a potential witness or 6
called at trial, but both were available to testify about Fahnley’s whereabouts
during August of 2008. Although counsel did speak with one of the witnesses,
he failed to interview the other. Trial counsel decided not to introduce any of
this evidence because he was concerned that an “imperfect alibi”—where
neither witness could account for all of Fahnley’s time during August of 2008—
would undermine the defense.
[¶11] Counsel also did not present credit card billing records that, along
with the dates of Fahnley’s frequent medical appointments, would have
accounted for Fahnley’s whereabouts on many of the days during August of
2008. The credit card records would have shown Fahnley’s travels to Boston
for music and photography and in and around Maine. The records would have
shown no trips to the alleged victim’s family home in western Massachusetts in
mid-August.
[¶12] At the post-conviction hearing, trial counsel testified that he could
not remember what changed between the time he wrote the letter and the time
of the trial, when he ultimately did not present the evidence discussed in the
letter. He testified that he believed that the State’s case had been presented as
favorably to the defense as he could have expected and that he was concerned 7
with presenting additional evidence that the State could then use against the
defense.
[¶13] Fahnley testified at the post-conviction hearing that he was very
involved in the case from the beginning and that he brought all of the above
evidence to trial counsel’s attention prior to trial. He testified that he expected
counsel to introduce the credit card records; that he had wanted all of the
witnesses he identified to testify; and that when counsel did not present that
evidence, he was “flabbergasted.” He would have hired a third attorney had
time permitted him to do so.
[¶14] After a thorough discussion of the relevant law, the post-conviction
court ultimately found that Fahnley had been deprived of the effective
assistance of counsel because trial counsel (1) failed to interview witnesses,
which constituted a failure to make a reasonable investigation; (2) failed to
present potentially exculpatory evidence, even after counsel notified Fahnley
that he would present that evidence; and (3) failed to consult with Fahnley with
regard to overarching defense strategy. The court placed significant weight on
counsel’s “abandon[ment of] the defense he discussed with petitioner, the
defense [that] petitioner developed and wanted presented to the jury,” without
consulting Fahnley. The court found that the defense had been prejudiced 8
because, in sum, the “witnesses and evidence available to support petitioner’s
defense that neither he nor the victim were where the victim alleged were not
offered,” and the “witnesses and evidence that provided a motive for the victim
and his family to retaliate against petitioner were not offered.”
[¶15] After the court granted Fahnley’s petition for post-conviction
review and vacated his conviction, the State timely appealed. See 15 M.R.S.
§ 2131(2) (2017); M.R. App. P. 2B(b)(1).
II. DISCUSSION
A. Standard of Review
[¶16] We apply “a deferential standard of review to the findings of a
post-conviction court,” and we “will not overturn a post-conviction court’s
determination as to the effectiveness of trial counsel unless it is clearly
erroneous and there is no competent evidence in the record to support it.”
Pineo v. State, 2006 ME 119, ¶ 11, 908 A.2d 632 (quotation marks omitted).
“[T]he 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.” Philbrook v. State, 2017 ME 162, ¶ 9, 167 A.3d 1266. “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 the facts 9
necessary to support its judgment if those inferred findings are supportable by
evidence in the record.” Id. (quotation marks omitted). Thus, in order for the
State to prevail, we would have to conclude that the record is devoid of any
competent evidence to support the court’s finding.
B. Ineffective Assistance of Counsel
[¶17] Article I, section six of the Maine Constitution and the Sixth
Amendment to the United States Constitution establish that defendants in
criminal proceedings are entitled to receive the effective assistance of an
attorney at trial. McGowan v. State, 2006 ME 16, ¶ 9, 894 A.2d 493. When
confronted with claims of ineffective assistance of counsel, we employ a
two-part analysis to determine “(1) whether counsel’s representation fell
below an objective standard of reasonableness and (2) whether errors of
counsel actually had an adverse effect on the defense.” Fortune v. State,
2017 ME 61, ¶ 9, 158 A.3d 512 (alteration omitted) (quotation marks omitted)
(citing Strickland v. Washington, 466 U.S. 668, 698 (1984); Theriault v. State,
2015 ME 137, ¶¶ 13-14, 125 A.3d 1163). Together, the two prongs of this
case-by-case, fact-driven analysis, see McGowan, 2006 ME 16, ¶ 12, 894 A.2d
493, require a “showing that counsel’s errors were so serious as to deprive the 10
defendant of a fair trial, a trial whose result is reliable,” Strickland, 466 U.S. at
687.
[¶18] “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.” Philbrook,
2017 ME 162, ¶ 7, 167 A.3d 1266 (quotation marks omitted). “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 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.” Id. ¶ 8 (quotation marks omitted).
[¶19] In this case, the court’s finding that Fahnley had been deprived of
the effective assistance of counsel at trial is supported by an abundance of
competent record evidence. Although the State’s argument—that there is
evidence in the record to support some of the tactical decisions made by defense
counsel—may have some merit, that is not the standard that guides our
analysis. Because the court’s findings regarding ineffective assistance are
supported by competent record evidence—including ample support for its 11
findings regarding trial counsel’s failure to interview witnesses, failure to
present exculpatory evidence, and failure to communicate with his client
regarding overarching defense strategy—we affirm the judgment.
The entry is:
Judgment affirmed.
Andrew S. Robinson, District Attorney, Joshua W. Robbins, Asst. Dist. Atty., and Michael B. Dumas, Asst. Dist. Atty. (orally), Office of the District Attorney, Farmington, for appellant State of Maine
Luke S. Rioux, Esq. (orally), and Valerie A. Randall, Esq., Rioux, Donahue, Chmelecki & Peltier, Portland, for appellee John Fahnley
Franklin County Unified Criminal Docket docket number CR-2016-666 FOR CLERK REFERENCE ONLY