Fortune v. State

• Decision Date: 04 April 2017
• Docket Number: Docket: Ken–16–18
• Citation: 158 A.3d 512
• Parties: Daniel L. FORTUNE v. STATE of Maine
• Court: Maine Supreme Court

158 A.3d 512

Daniel L. FORTUNE

v.STATE of Maine

Docket: Ken–16–18

Supreme Judicial Court of Maine.

Argued: February 6, 2017

Decided: April 4, 2017

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Daniel L. Fortune

Maeghan Maloney, District Attorney (orally), Kennebec County District Attorney's Office, Prosecutorial District IV, Augusta, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GORMAN, J.

[¶ 1] Daniel L. Fortune appeals from a judgment of the Superior Court (Kennebec County, Marden, J. ) denying his petition for post-conviction review, which was based, in part, on a claim of ineffective assistance of appellate counsel. We affirm the court's judgment.

I. BACKGROUND

[¶ 2] On August 28, 2008, the State charged Daniel L. Fortune by indictment with fourteen criminal offenses,¹ including four counts of aggravated attempted murder (Class A), 17–A M.R.S. § 152–A(1) (2007).² In May of 2010, the court (Somerset County, Murphy, J. ) held a jury trial at which State witness Leo Hylton—Fortune's alleged accomplice who had earlier pleaded guilty—testified repeatedly that he could not recall the events of the night in question. On cross-examination, Fortune directed Hylton's attention to two portions of a letter that Hylton had written to the victims of the crime and had read aloud in court as part of his sentencing allocution several months earlier.³ Hylton agreed that he had made an allocution, he had written the letter, the handwriting in the letter was his own, and the statements in the letter were true, but testified that he could not recall making the allocution or writing the letter. As he left the stand, the court reminded Hylton that he was "not finally excused from testifying."

[¶ 3] The next day, the State moved to admit the entirety of Hylton's sentencing allocution. Over Fortune's objection, the court admitted the allocution pursuant to M.R. Evid. 106 because the portions of the letter highlighted by Fortune, if considered out of context, might suggest that Hylton was taking sole responsibility for the crimes rather than apologizing for failing to stop Fortune from committing them. The allocution was then read aloud to the jury while Hylton was in another room. Fortune did not recall Hylton to question him regarding the entire allocution.

[¶ 4] On May 14, 2010, Fortune was convicted of all charged offenses. After a hearing, the court imposed multiple life sentences in addition to multiple lesser sentences, all to be served concurrently. Fortune appealed his convictions and sentences, and we affirmed the judgments. State v. Fortune , 2011 ME 125, ¶¶ 1–2, 34 A.3d 1115.

[¶ 5] Fortune filed a petition for post-conviction review in the Superior Court (Kennebec County)⁴ in accordance with 15 M.R.S. § 2129 (2011).⁵ He asserted several grounds for relief, including that his right to confront witnesses against him pursuant to the Confrontation Clause, U.S. Const. amend. VI, had been violated when Hylton's allocution was read to the jury absent further cross-examination. With regard to this claim, Fortune asserted that both trial counsel and appellate counsel had failed to provide effective assistance. Because appellate counsel was unavailable to appear at the post-conviction hearing,⁶ Fortune and the State stipulated that Fortune's appellate counsel did not discuss, research, or raise the Confrontation Clause issue on appeal because he had not wished to obscure what he considered to be more meritorious arguments by raising an issue that would be reviewed for obvious error.⁷

[¶ 6] After a testimonial hearing, in a judgment dated December 23, 2015, the court (Marden, J. ) denied Fortune's petition. As noted, Fortune had claimed that both trial counsel and appellate counsel were ineffective. The court held that Fortune had failed to prove that trial counsel was ineffective, and Fortune has not challenged that determination.⁸ Regarding Fortune's contention that he received ineffective assistance of appellate counsel, however, the court's judgment is confusing and internally inconsistent. The court found that Fortune's appellate counsel was "deficient in failing to present [the Confrontation Clause issue]" because that issue was "as strong if not stronger" than some of the issues that were raised on appeal. In addition, the court seemed to grant Fortune's petition with regard to the Confrontation Clause issue; it stated that Fortune "is entitled to an appeal on that very issue." Despite this language, however, the court did not make an express finding as to whether appellate counsel's failure to raise the Confrontation Clause issue prejudiced Fortune's direct appeal, and it ultimately denied Fortune's petition.

[¶ 7] In a motion for reconsideration, Fortune pointed out the inconsistency to the court, proposing that the court had in fact intended to grant his petition regarding the claim of ineffective assistance of appellate counsel. Declining to modify its judgment, the court responded by stating that, in its original order, it had determined that appellate counsel's performance "was not manifestly unreasonable,"⁹ and had "therefore denied the petition with regard to appellate counsel." Despite that language, and despite once again denying Fortune's petition, however, the court repeated the language it used in its original order, i.e., that Fortune "is entitled to an appeal on that very issue."

[¶ 8] Fortune appealed the post-conviction judgment, and we granted Fortune a certificate of probable cause to pursue this appeal. See M.R. App. P. 19.

II. DISCUSSION

[¶ 9] As we have noted, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "establishes the standards controlling the disposition of claims of ineffective assistance of counsel" in the form of a two-part analysis: (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." Theriault v. State , 2015 ME 137, ¶¶ 13–14, 125 A.3d 1163 (citation omitted) (quotation marks omitted). In Strickland , the United States Supreme Court characterized the inquiries into ineffective assistance of counsel as mixed questions of law and fact. 466 U.S. at 698, 104 S.Ct. 2052. Federal appellate courts have therefore reviewed ineffective assistance of counsel claims as such.¹⁰ See, e.g. , Smith v. Dickhaut , 836 F.3d 97, 103 (1st Cir. 2016) ("In the context of a federal habeas proceeding, claims of ineffective assistance of counsel present mixed questions of law and fact ...."); Taylor v. Kelley , 825 F.3d 466, 469 (8th Cir. 2016) ; United States v. Ragin , 820 F.3d 609, 617 (4th Cir. 2016) ; Denson v. United States , 804 F.3d 1339, 1341 (11th Cir. 2015) ; United States v. Kilpatrick , 798 F.3d 365, 374 (6th Cir. 2015) ; United States v. Thomas , 724 F.3d 632, 647 (5th Cir. 2013) ; Carrera v. Ayers , 670 F.3d 938, 942 (9th Cir. 2011) ; United States v. Rushin , 642 F.3d 1299, 1302 (10th Cir. 2011) ; Morales v. United States , 635 F.3d 39, 43 (2d Cir. 2011) ; United States v. Goodwin , 594 F.3d 1, 4 (D.C. Cir. 2010) ; United States v. Fudge , 325 F.3d 910, 923 (7th Cir. 2003) ; United States v. Cross , 308 F.3d 308, 314 (3d Cir. 2002).

[¶ 10] In contrast, we have historically reviewed a court's determinations as to ineffective assistance of counsel—both pre- and post-Strickland —solely for clear error. McGowan v. State , 2006 ME 16, ¶ 15, 894 A.2d 493 ; see, e.g. , Chase v. State , 227 A.2d 455, 455, 462 (Me. 1967) (reviewing the denial of a pre-Strickland claim of ineffective assistance of counsel for clear error). In 2006, in accordance with principles of judicial economy, we twice declined to reach the question of whether to adopt a bifurcated standard of review—clear error for findings of fact and de novo for conclusions of law—in appeals governed by Strickland . See Pineo v. State , 2006 ME 119, ¶ 11, 908 A.2d 632 ; McGowan , 2006 ME 16, ¶¶ 14–16, 894 A.2d 493. For many years thereafter, without discussion, we employed the clear error standard for appeals of post-conviction judgments where the petitioner claimed ineffective assistance of counsel. See, e.g. , Roberts v. State , 2014 ME 125, ¶ 23, 103 A.3d 1031 ; Lamarre v. State , 2013 ME 110, ¶ 14, 82 A.3d 845 ; Francis v. State , 2007 ME 148, ¶ 5 & n.2, 938 A.2d 10 ; Heon v. State , 2007 ME 131, ¶ 8, 931 A.2d 1068 ; Alexandre v. State , 2007 ME 106, ¶ 43, 927 A.2d 1155.

[¶ 11] More recently, however, but without announcing any changes in our process, we articulated a different standard of review for appeals of post-conviction judgments. See, e.g. , Middleton v. State , 2015 ME 164, ¶¶ 11, 28, 129 A.3d 962 ("In appeals from judgments issued in post-conviction proceedings, we review questions of law de novo and apply a deferential standard of review to factual findings." (quotation marks omitted)); Theriault , 2015 ME 137, ¶ 12, 125 A.3d 1163 ; Manley v. State , 2015 ME 117, ¶ 11, 123 A.3d 219.

[¶ 12] Again, we recognize that " Strickland is the seminal case that establishes the standards controlling the disposition of claims of ineffective assistance of counsel," and "[its] standards govern ineffectiveness claims in state court post-conviction proceedings." Theriault , 2015 ME 137, ¶ 13, 125 A.3d 1163 (quotation marks omitted). Today, in our continuing effort to be faithful to the Strickland standards, and acknowledging that both prongs of the Strickland analysis often present mixed questions of law and fact, see Strickland , 466 U.S. at 468, 104 S.Ct. 2052, we announce that we will review a post-conviction court's legal conclusions de novo and its factual findings for clear error, see McGowan , 2006 ME 16, ¶ 14, 894 A.2d 493 ("Mixed questions of law and fact are generally subject to bifurcated appellate review with the post-conviction court's factual findings reviewed for clear error and its legal conclusions reviewed...