MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 113 Docket: Cum

- 18

- 432 S ubmitted

On	Briefs: May	30,	2019 Decided: July	18,	2019 Revised: November	21, 2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR, and HJELM,	JJ.

ROBERT GOGUEN

v. JON	HADDOW
SAUFLEY,	C.J. [¶1] Robert	 Goguen	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court (Cumberland	 County, Mills,	 J. )	 dismissing, for	 failure	 to	 state	 a	 claim,	 his complaint	alleging professional malpractice	and	related	causes	of	action	arising from Jon Haddow’s legal representation	of	him	in	federal	criminal	proceedings

. We	affirm	the	judgment. [¶ 2 ] Th e	federal proceedings at	issue	here b egan	in January 2011	when Goguen	was	indicted	in	the	Uni ted	States	District	Court	for	the	District	of	Maine for	knowingly	 failing	 to	register	as	a	sex	offender

. 1 See 18	U.S.C.S.	§	2250(a) (LEXIS	 through	 Pub.	 L.	 No.	 116

- 19). G oguen ,	 represented	 by other counsel,

1 Goguen	was	convicted	of	sexual	assault	in	the	second	degree	in	Connecticut	in	1996.2 pleaded	 guilty to	 the	 federal	 charge ,	 admitting in	 open	 court	 that	 he had knowingly	fail ed to	update	his	registration

. [¶ 3 ]		At	the	same	time,	Goguen	was	facing	state	charges filed	in	2010 in Maine	 for	 unlawful	 sexual	 contact	 with	 a	 minor	 (Class	 B), 17

- A	 M.R.S. § 255

- A(1)(E

- 1)	 (2018)

. H e	 was represe nted	 by	 another	 attorney on	 those charges

. It	was	understood	that	the state	charge	could	be	used	by	the	federal government	to	enhance	the	federal	sentence. [¶ 4 ] In	October	2011,	Goguen , personally	and	not	through	counsel , filed
a	motion in	federal	cou rt asking for	his	then	counsel	to	withdraw	and seeking to	 withdraw	 his	 plea	 of	 guilty to	 the	 charge	 of	 f a iling	 to	 register .	 	 That December,	 the	 court	 ( J. Woodcock,	 J. )	 granted	 Goguen’s	 motion allowing his counsel	to	withdraw	and	appointed	Haddow	to	represent	Goguen. [¶ 5 ]		In	May	2012, Goguen	withdrew	his	motion	to	withdraw	the	guilty plea in	 the	 federal	prosecution	 for	 failure	 to	register ,	and the	state charge	of unlawful	sexual	contact	with	a	minor was dismissed	in	July 2012	on	the	ground that	Goguen	was	“being	sentenced	in	Federal	Court.” [¶ 6 ] At	 Goguen’s September	 2012 federal sentencing	 hearing on	 the failure	to	register	charge , t he	court informed	Goguen , thoroughly	and in great detail , of	the	possible	consequences	of	his	decision	whether	to	admit or proceed3 to	trial	on the	allegation that	he	had	committed	a	sex	offense	while	in failure	to register status

— a	 fact	 that,	 if	 proved,	 would	 generate	 a	 federal	 sentencing enhancement. Following that	explanation,	t he	court	afforded	Goguen	an other hour to	consult with Haddow. After	consulting with	Haddow, Goguen	stated	in open	court	that	he	did	not	dispute	that	he	had	committed	a	sex	offense	while in failure	to	register	status .		The	court	sentenc ed	Goguen	to	a term	of	months and a	period	of	supervised	release with	conditions

. [¶ 7 ] In	2013, after Goguen left	prison on	supervised	release ,	the	United States	Probation	Office moved	to	revoke his release	on	the	ground	that	he	had accessed	pornograph y at the	Penobscot	Judicial	Center	l aw	library in	violation of his conditions	of	release .		Haddow	was	again	appointed	to	represent	Goguen. In	open	court,	Goguen	waived	his	right	to	an	evidentiary	hearing	and admitted that	he	had	viewed	pornography	in	violation	of	the	conditions	of	his	supervised release.		Goguen	was	sentenced ,	and	his conviction	was	affirmed	on	appeal	to the	United	States	Court	of	Appeals	for	the	First	Circuit. United	States	v.	Goguen , No.	13

- 2230	(1 st	Cir.	Oct.	9,	2014). [¶ 8 ] More	 than three years	later, in March	2018,	Goguen	 filed	his	civil complaint	against	Haddow	in	the	Superior	Court , alleging	legal malpractice	and related	claims arising	from	Haddow’s representation	of	him both at sentencing4 for	 failure	 to	 register and during	 the	 proceedings	 to	 revoke his supervised release

. Upon Haddow ’s	 motion,	 the	 court ( Mills,	 J. ) dismiss ed Goguen’s complaint	for	failure	to	state	a	claim. See M.R.	Civ.	P.	12(b)(6). [¶ 9 ] Because	undisturbed	judgments have	been	entered , here based	on Goguen’s	in

- court	admissions , finding	that	he	committed a sex	offense while in failure	to	register status	and	that	he	a ccess ed pornography in	violation	of	his conditions	 of	 release , Goguen is	 collaterally	 estopped	 from	 asserting	 that inaccurate	legal	advice

— rather	than his own	conduct

— caused the	injuries	that he	alleges

. 2 See Butler	v.	Mooers ,	2001	ME	56,	¶¶	8

- 9,	771	A.2d	1034 ; Brewer	v. Hagemann ,	2001	ME	27,	¶¶	7

- 10,	771	A.2d	1030

. [¶1 0 ] As	the	trial	court	noted,	in	many jurisdictions,	a	person	bringing	a professional	malpractice	claim against	 former	criminal	defense	counsel must plead	and	prove the	additional	element	of exoneration,	if	not	actual	innocence, of	the	criminal	charge to	see k any	relief	on	the	basis	of	incarceration

. Brewer , 2001	ME	27,	¶	6	&	nn.3

- 4,	771	A.2d	1030. Most states	require	actual	innocence,

see Wiley	v.	County	 of	San	Diego ,	966	P.2d	983,	991	 (Cal.	1998) ; Rodriguez	v.

2 All torts	that	Goguen	has	alleged require	proximate	causation. See Argereow	v.	Weisberg ,	2018 ME	140,	¶ 27,	195	A.3d	1210 ( intentional	infliction	of	emotional	distress ) ; Steadman	v.	Pagels ,	2015 ME	122,	¶	26,	125	A.3d	713 ( negligent	infliction	of	emotional	distress ) ; Bell ex	rel.	Bell v. Dawson , 2013	ME	108,	¶¶	17 ,	24 ,	82	A.3d	827 ( negligen t supervision ) ; Butler	v.	Mooers ,	2001	ME	56,	¶	9,	771 A.2d	1034 (professional	malpractice).5 Nielsen ,	609	N.W.2d	368,	374

- 75	(Neb. 2000) ; Mahoney	v.	Shaheen,	Cappiello, Stein	&	Gordon,	P.A. ,	727	A.2d	996,	999

- 1000	(N.H.	1999) , 3 though	some	states require	 only	 exoneration, see Shaw	 v.	 State ,	 861	 P.2d	 566,	 569

- 73	 (Alaska 1993) ; Stevens	 v.	 Bispham ,	 851	 P.2d	 556,	 561	 (Or.	 1993) ; Peeler	 v. Hughes	&
Luce ,	909	S.W.2d	494,	498	(Tex.	1995)

. See Brewer , 2001	ME	27, ¶ 6	&	nn.	3

- 4 , 771	A.2d	1030

. [¶ 1 1] Goguen	 has	 not ,	 however, alleged	 that	 any one of	 the	 pertinent court	orders

— the	judgment	of	conviction	 for	 failing	 to	register,	 the	sentence imp osed	upon	that	conviction,	or	the	order	revoking	his	release

— has	been	set aside for any reason . Because	 Goguen	 has	 not ,	 through	 his	 complaint, presented any facts	necessary to	overcome	the	Maine	collateral	estoppel	bar, we	need	not,	o n	the	record	presented	here,	opine	on	whether the elements of actual	innocence	or	exoneration are necessary or	sufficient	to	proceed	with	a professional	malpractice	claim under	Maine law when	the	alleged	malpractice involved	 the	entry	of	a judgment	of conv iction	or	a	subsequent	revocation	of release.		Further,	to	the	extent	that	Goguen’s	complaint	may	be	seen	to	allege

3 Cf.	 Hilari o v.	 Reardon ,	 960	 A. 2 d	 337,	 339,	 343

- 45	 (N.H.	 2008) (vacating	 the	 dismissal	 of	 a complaint	 all eging	 that	 counsel’s	 unauthorized	 motion	 to	 withdraw	 a	 guilty	 plea	 resulted	 in	 the convicted	 offender’s	 breach	 of	 the	 plea	 agreement	 and	 a	 ruling	 that	 the	 offender	 could	 not	 seek suspension	of	a	portion	of	his	sentence	pursuant	to	the	terms	of	that	agreeme nt).6 malpractice	affecting	the	sentence	imposed	by	the	federal	court after	Goguen pleaded	guilty	to	failing	to	register ,	the	complaint	fails	to	s tate	a	claim	for	relief because,	 as	 is	 revealed	 by	 Goguen’s	 allegations	 themselves,	 the	 sentence imposed	was at	 the	bottom	 of	 the	applicable	 range	 of	 the	 federal	 sentencing guidelines	 given	 the	 offense	 level	 that	 pertained	 to	 Goguen	 for	 his	 crime	 of failur e	to	register

. The	entry	is: Judgment	affirmed.

Robert	Goguen,	appellant pro	se Benjamin	J.	Wahrer,	Esq.,	and	James	M.	Bowie,	Esq.,	Thompson	Bowie	&	Hatch LLC,	Portland,	for	appellee	Jon	Haddow

Cumberland	County	Superior	Court	docket	number CV

- 2018

- 117 F OR C LERK R EFERENCE O NLY