MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 137

Docket: Aro-14-158

Argued: December 9, 2014

Decided: October 29, 2015

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

Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.

Concurrence: SAUFLEY, C.J.

Dissent: ALEXANDER, J.

MARK J. THERIAULT

v.

STATE OF MAINE

HJELM, J.

[¶1] After a jury trial held in February 2011, Mark J. Theriault was 

convicted of one count of unlawful sexual contact (Class A), 17-A M.R.S. 

§ 255-A(1)(F-1) (2014). Theriault challenged the judgment through a petition for 

post-conviction review, see 15 M.R.S. § 2122 (2014), alleging that he was denied 

effective assistance of counsel during the underlying criminal proceeding. The 

Superior Court (Aroostook County, Hunter, J.) denied Theriault’s petition after a 

hearing, and we issued a certificate of probable cause, allowing Theriault to appeal 

the adverse post-conviction judgment. See 15 M.R.S. § 2131(1) (2014); M.R. 

App. P. 19. Because the court’s decision applied a test for prejudice that did not 

fully comport with the standard established in Strickland v. Washington, 
2

466 U.S. 668 (1984), we vacate the post-conviction judgment and remand for 

reconsideration.

I. BACKGROUND

[¶2] We view the record of both the post-conviction proceeding and the 

underlying criminal action in the light most favorable to the State as the prevailing 

party. See Lamarre v. State, 2013 ME 110, ¶ 2, 82 A.3d 845. Theriault was 

indicted in July 2008 for unlawful sexual contact committed in March 2008 against 

a child who, at the time of the offense, was six years old. Attorney Allan Hanson 

was appointed to represent Theriault, and the case proceeded to a one-day jury trial 

in February 2011 (Aroostook County, Hunter, J.). The State presented the 

testimony of three witnesses: the victim’s sister, a registered nurse who spoke with 

the victim at a local hospital after the victim’s mother brought her there on the day 

of the incident, and the victim herself.

[¶3] The victim’s sister, who was twenty-two years old at the time of the 

trial, testified that in March 2008, she lived with the victim and their brother, 

mother, and stepfather, near Theriault’s residence. On March 14, 2008, Theriault 

drove her and the victim to a nearby store, and Theriault invited them back to his 

house. The sister refused, but the victim went with him. Later in the day, the 

victim returned home with wet hair and said that she had taken a bath. When the 

sister asked about the wet hair, the victim became quiet. That evening, the sister 
3

asked if Theriault had seen the victim naked and if Theriault had touched her 

“down there,” referring to the victim’s genitals. Becoming emotional, the victim 

said that he had seen her naked and touched her. The sister, who acknowledged 

that she is not trained to interview children, testified that as she spoke with the 

victim, she (the sister) first referred to the genital area as “down there,” and first 

raised the issue of whether the victim and Theriault were naked.

[¶4] The victim’s sister reported the disclosure to their mother, who then 

drove the victim and the sister to a nearby hospital. The victim and the sister 

continued to discuss the assault during the ride. At the hospital, the victim was 

examined by a registered nurse who was trained to assist physicians with primary 

assessments of sexual assault victims younger than thirteen years old. During the 

evaluation, the victim told the nurse that after she had taken a bath, Theriault called 

her into the living room and touched her over her clothing “down there,” which the 

victim identified by pointing toward her genitals. The nurse examined the victim 

and found no physical injury resulting from the alleged assault, which, based on 

the reported nature of the assault, was not unexpected. The nurse ultimately 

referred the victim for a forensic evaluation at The Spurwink Child Abuse 

Program, which specializes in pediatric sexual abuse assessments and interviews. 

No evidence was presented about the Spurwink evaluation.
4

[¶5] The victim then testified that in March 2008, when she was six years 

old, she went to Theriault’s residence, and, while there, she took a bath. After she 

got dressed, and while she was using a PlayStation video game, Theriault told her 

to go into his bedroom, where he removed her clothes, told her to lie down on the 

bed, and touched her genitals, penetrating her with his fingers.

[¶6] Theriault did not present a case-in-chief. The jury found him guilty, 

and at a sentencing hearing held two days later, the court imposed a prison term of 

sixteen years, with all but eight years suspended, and six years of probation. 

Attorney Hanson filed a notice of appeal and an application for leave to appeal the 

sentence. See 15 M.R.S. § 2151 (2014); M.R. App. P. 20. Theriault’s current 

attorney entered his appearance soon after, and Attorney Hanson withdrew as 

counsel. We denied Theriault’s application to allow an appeal from sentence, and 

in August 2011 we dismissed his direct appeal for want of prosecution.

[¶7] In August 2012, Theriault filed a petition for post-conviction review, 

which, as amended in May 2013, alleged that Attorney Hanson failed to provide 

effective representation during the pretrial and trial proceedings.1 A trial on the 

post-conviction petition was held in September 2013, at which Attorney Hanson 

and Theriault both testified. During the hearing, the court admitted into evidence a 

 1 Theriault also attempted to pursue a claim of ineffective assistance of counsel through a motion for 

new trial. See M.R. Crim. P. 33 (superseded by M.R.U. Crim. P. 33 (effective Jan. 1, 2015)). The court 

correctly denied the motion, because such a claim must be addressed in a post-conviction proceeding. See 

State v. Ali, 2011 ME 122, ¶ 20, 32 A.3d 1019. 
5

report of the psychosocial evidentiary assessment conducted by a licensed clinical 

social worker at the Spurwink Child Abuse Program. The report states that during 

the forensic interview of the victim conducted on March 25, 2008, “When asked if 

somebody had done something to her that she does not like, [the victim] stated, 

‘No.’” Additionally, the report recites, “When asked if [Theriault] does something 

that she does not like, she stated, ‘Hmmm, no.’” According to the report, the 

victim also initially denied that anything had happened “to her privates.” She then 

agreed that someone had touched her “privates” and, in response to a series of 

questions, described at least one incident when Theriault sexually assaulted her.

[¶8] After the parties submitted post-trial arguments, on March 11, 2014, 

the court issued a written decision denying the petition, concluding that its 

“analysis of the prejudice prong is determinative of this petition.” In its order, the 

court outlined the two-part test that controls claims of ineffective assistance of 

counsel, which focuses on the quality of trial counsel’s performance and any 

resulting prejudice. Addressing the issue of prejudice, the court stated generally, 

“If a post-conviction petitioner proves ineffective assistance, he must also 

demonstrate that the outcome of the proceedings would have been different but for 

counsel’s performance.”

[¶9] The court then proceeded to address many of Theriault’s specific 

challenges to the quality of Attorney Hanson’s representation of him, finding in 
6

each instance that Theriault had not demonstrated prejudice resulting from 

Attorney Hanson’s allegedly inadequate representation of him. In a number of its 

findings, the court framed the issue of prejudice in terms of whether, if Attorney 

Hanson had performed as Theriault contended he should have, there would have 

been a different outcome in the criminal trial. The court found, for example, that

• Theriault failed to prove that services of a private investigator, which 

Attorney Hanson did not secure, “might have produced a different 

outcome at his trial” or would have made a “difference in the outcome of 

this case”;

• Theriault did not prove that Attorney Hanson’s failure to consult with an 

expert on child interview issues “would have produced a different 

outcome at trial”;

• Theriault did not prove that evidence of Theriault’s character, which 

Attorney Hanson did not present, “would have made a difference at his 

trial”;

• Theriault failed to prove that if he had testified, “the outcome of his trial 

would have been different”; and

• Theriault did not prove that, with additional information presented at the 

sentencing hearing, “the court’s sentence might have been different.”2

[¶10] The court also considered Theriault’s claim that Attorney Hanson did 

not present available evidence that Theriault did not have a PlayStation at his 

house, to impeach the victim’s testimony that she was playing with a PlayStation at 

 2

 Although Theriault’s post-conviction petition alleged deficiencies in Attorney Hanson’s pretrial and 

trial representation, he presented evidence at the hearing that Attorney Hanson also did not provide 

effective representation during the sentencing phase of the case, and the court examined that claim. It 

therefore became part of the basis for Theriault’s claim for relief.
7

his house shortly before he assaulted her. The court rejected this claim, noting that 

at trial Attorney Hanson presented evidence that the victim told the nurse that 

Theriault had touched her over her clothing, which was inconsistent with the 

victim’s trial testimony that she was not wearing clothes at the time of the assault. 

The court found that because the jury appears to have accepted the victim’s 

testimony despite her contradictory statements about the incident itself, evidence 

that Theriault did not have a PlayStation was not “likely to have produced a 

different result.” In its order, the court did not address Theriault’s argument that 

Attorney Hanson should have presented evidence of the victim’s exculpatory 

statements made during the Spurwink evaluation to impeach her inculpatory trial 

testimony.

[¶11] Without reaching the question of whether Attorney Hanson’s 

representation of Theriault was constitutionally deficient, the court denied the 

petition based on its conclusion that Theriault “has failed to persuade this court that 

he was actually prejudiced by any such deficiencies.” Theriault successfully 

sought leave to appeal the judgment pursuant to 15 M.R.S. § 2131(1) (2014) and 

M.R. App. P. 19.

II. DISCUSSION

[¶12] Because the court denied Theriault’s petition for post-conviction 

review on the sole basis that he had not proved prejudice arising from any 
8

constitutional inadequacies in legal representation, the limited issue presented here 

is whether the court erred in that determination. 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. Roberts v. State, 2014 ME 125, 

¶ 21, 103 A.3d 1031.

[¶13] As we have recently noted, Strickland is the “seminal case” that 

establishes the standards controlling the disposition of claims of ineffective 

assistance of counsel. Manley v. State, 2015 ME 117, ¶ 12, --- A.3d ---.

3

 The 

federal constitutional guarantee of the right to counsel under the Sixth Amendment 

extends to the states through the Fourteenth Amendment, Missouri v. Frye, 

566 U.S. ---, 132 S. Ct. 1399, 1404 (2012), and so the Strickland standards govern 

ineffectiveness claims in state court post-conviction proceedings.

[¶14] To prevail in a post-conviction proceeding based on an alleged 

constitutional deprivation of counsel, the petitioner must demonstrate two points: 

first, “that counsel’s representation fell below an objective standard of 

reasonableness,” and second, that “errors of counsel . . . actually had an adverse 

effect on the defense.” Strickland, 466 U.S. at 688, 693. These elements of an 

ineffective assistance case, when proved, constitute a “showing that counsel’s 

 3 In Manley, we reaffirmed that Strickland v. Washington, 466 U.S. 668 (1984), dispositively 

establishes the criteria in ineffectiveness claims, including the nature of prejudice that the petitioner must 

establish, despite language in some of our opinions that is not fully consistent with that federal authority. 

Manley v. State, 2015 ME 117, ¶ 18, --- A.3d ---.
9

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.” Id. at 687. It is the second of these two elements that is at issue here.4

[¶15] We consider in turn Theriault’s alternative arguments that he was 

presumptively prejudiced by Attorney Hanson’s ineffective representation, and that 

the court erred in finding that he had not proved actual prejudice.

A. Presumed Prejudice

[¶16] Theriault first argues that Attorney Hanson’s representation was so 

deficient that he is relieved of any burden to prove actual prejudice. Theriault did 

not advance this argument in the trial court, and so we review it under the obvious 

error standard. See State v. Dolloff, 2012 ME 130, ¶ 31, 58 A.3d 1032. An error is 

obvious if it is plain, affects substantial rights, and “seriously affects the fairness 

and integrity or public reputation of judicial proceedings.” Id. ¶ 35 (quotation 

marks omitted).

[¶17] In cases where counsel’s ineffectiveness amounts to the “constructive 

denial of the assistance of counsel,” prejudice is “legally presumed” and need not 

 4

 Both federal and state law make clear that if a trial court concludes that the petitioner has not proved

prejudice resulting from any alleged ineffectiveness, the court is entitled to deny the petition on that basis 

without reaching the question of whether the petitioner has also proved that ineffectiveness. See, e.g.,

Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient 

before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we 

expect will often be so, that course should be followed.”); Francis v. State, 2007 ME 148, ¶ 6, 

938 A.2d 10. Here, the court therefore followed a well-established analytical path by addressing the 

prejudice prong first but, having determined that issue adversely to Theriault, not reaching his claim of 

ineffectiveness.
10

be affirmatively proved. Strickland, 466 U.S. at 692; see also United States v. 

Cronic, 466 U.S 648, 659 (1984). Such cases, however, are “rare,” Laferriere v. 

State, 1997 ME 169, ¶ 11, 697 A.2d 1301, and occur when there is a “complete 

denial of counsel” or when “counsel entirely fails to subject the prosecution’s case 

to meaningful adversarial testing.” Cronic, 466 U.S. at 659; see also Pineo v. 

State, 2006 ME 119, ¶ 15, 908 A.2d 632 (holding that under federal jurisprudence, 

Cronic applies only when “defense counsel utterly fails in defending a client”). 

See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980) (prejudice is presumed 

when counsel proceeded to represent the accused despite a conflict of interest);

Geders v. United States, 425 U.S. 80, 86, 91 (1976) (prejudice is presumed when a 

court order prevented a defendant from consulting with trial counsel during an 

overnight recess between his direct- and cross-examination); Herring v. New York, 

422 U.S. 853, 857-64 (1975) (prejudice is presumed when trial counsel was

prohibited from making a closing argument). See generally Laferriere, 

1997 ME 169, ¶ 11, 697 A.2d 1301.

[¶18] Here, the record does not plainly demonstrate that, if Attorney

Hanson’s representation of Theriault was ineffective, it fell so far below 

constitutional standards that it constitutes one of the “rare” situations where 

Theriault would not be required to prove actual prejudice. Consequently, Theriault 

has not shown that the court committed obvious error by failing to presume the 
11

existence of such prejudice to his right to counsel and instead examining the 

post-conviction record for actual prejudice. Theriault is therefore left with the 

burden of affirmatively proving prejudice. Accordingly, we turn to Theriault’s 

contention that the court erred when it concluded that Theriault had not proved

actual prejudice.

B. Actual Prejudice

[¶19] When prejudice cannot be presumed in a post-conviction challenge 

based on ineffective representation, the actual prejudice that a petitioner must 

prove “is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 

466 U.S. at 694. Although this standard makes reference to a “probability,” which 

suggests a quantitative inquiry, Strickland’s test for demonstrating actual prejudice 

requires a showing of a “reasonable probability,” which is defined as a showing 

that the alleged ineffectiveness is enough to “undermine confidence in the 

outcome” of the underlying proceeding. Id. (emphasis added). Put another way, a 

criminal defendant is prejudiced by constitutionally ineffective representation 

when the result of the proceeding is “unreliable.” Id. at 687. Under Strickland, 

therefore, the trial court must engage in an analysis that is not quantitative—that is, 

to determine if prejudice is probable. Rather, the court’s analysis must be 
12

qualitative in nature—that is, to determine whether the petitioner has demonstrated 

that trial counsel’s performance undermines confidence in the outcome of the case 

and renders that outcome unreliable.

[¶20] In Strickland, the Court expressly held that the proper test of a 

“reasonable probability” is different from an “outcome-determinative” standard, 

which is the quantitative inquiry that would require proof “that counsel’s deficient 

conduct more likely than not altered the outcome in the case.” Id. at 693. In 

expressly rejecting the different standard of proof contained in the 

“outcome-determinative” test, id. at 697, the Court explained that “[t]he result of a 

proceeding can be rendered unreliable, and hence the proceeding itself unfair, even 

if the errors of counsel cannot be shown by a preponderance of the evidence to 

have determined the outcome.” Id. at 694; see also Lockhart v. Fretwell, 

506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome 

determination, without attention to whether the result of the proceeding was 

fundamentally unfair or unreliable, is defective.”); Gonzalez-Soberal v. 

United States, 244 F.3d 273, 277 (1st Cir. 2001) (holding that the trial court 

committed error by stating that the petitioner “must demonstrate that but for the 

unprofessional error, he would not have been found guilty,” even when the court 

correctly articulated the Strickland prejudice standard elsewhere in its written order

(quotation marks omitted)). In those cases, the outcome-determinative test exceeds 
13

the burden that a petitioner is required to meet under Strickland’s “reasonable 

probability” standard and could result in the denial of relief that would otherwise 

be available under Strickland.

[¶21] In examining the relationship between the “reasonable probability” 

and “outcome-determinative” standards, it is significant to note that under some 

circumstances, a petitioner can satisfy the “reasonable probability” test by proving 

by a preponderance of the evidence that counsel’s deficient representation altered 

the outcome of the case—in other words, by satisfying the outcome-determinative 

test. See Williams v. Taylor, 529 U.S. 362, 396-97 (2000). In Williams, the

Virginia Supreme Court had vacated the trial court’s judgment granting

post-conviction relief based on ineffective assistance of counsel. Id. at 370-71. 

The Virginia Supreme Court construed the trial court to have used the outcomedeterminative test, which the appellate court found was error. Id. at 371, 397. The 

United States Supreme Court reversed the Virginia Supreme Court’s decision and 

reinstated the trial court’s judgment for the petitioner. Id. at 397-99. In its 

analysis, the Supreme Court held that the Virginia appeals court itself erred by 

concluding that a “mere difference in outcome is not sufficient to establish 

constitutionally ineffective assistance of counsel.” Id. at 397 (quotation marks 

omitted). Thus, Williams held that in that case, where the petitioner had proved 

that ineffective representation actually determined the outcome of the underlying 
14

case, the petitioner also satisfied the “reasonable probability” aspect of the

Strickland standard of prejudice.

5

 See id. at 397-99.

[¶22] Significantly for purposes of this case, however, the Williams Court 

did not hold that a petitioner’s failure to satisfy the outcome-determinative test 

must lead to a denial of the petition. Where a court imposes the 

outcome-determinative test and determines that the petitioner has not proved

prejudice under that standard, then in effect the court is concluding that the 

petitioner fell short of meeting a standard that is higher than the test that should 

have been applied pursuant to Strickland. In other words, a petitioner’s 

satisfaction of the outcome-determinative test is often one way to meet the 

Strickland prejudice standard that is sufficient, but not necessary.

[¶23] Controlling federal jurisprudence therefore establishes that the 

“reasonable probability” standard defined in Strickland and the 

outcome-determinative test differ in substance and are not co-extensive. With 

 5

 In two other cases, however, the United States Supreme Court explained that the 

outcome-determinative test might improperly allow relief where it should not be granted. In one case, 

where counsel failed to make an objection based on a legal argument that was subsequently discredited, 

the Court noted that the defendant might have “lost” a meritless opportunity for a more favorable 

outcome, but the reliability of the criminal proceeding’s outcome is not compromised. Lockhart v. 

Fretwell, 506 U.S. 364, 367-69, 371-72 (1993). In the second case, the Supreme Court held that an

attorney’s decision not to knowingly present false exculpatory evidence did not prejudice the defendant 

within the meaning of Strickland. Nix v. Whiteside, 475 U.S. 157, 175-76 (1986). Even if the defendant 

proved that he would have attained a better outcome with perjured testimony, that outcome would not 

have been reliable. Id. These cases demonstrate that in some circumstances, a petitioner cannot always 

satisfy the “prejudice” prong of the Strickland standard without addressing whether counsel’s conduct 

undermined the reliability of the proceedings.
15

these insights into the nature of the “reasonable probability” test, we turn to the 

court’s determination that Theriault failed to prove that he was prejudiced by any 

deficiencies in Attorney Hanson’s representation of him.

[¶24] Here, the court concluded that Theriault did not prove that any 

deficiencies in Attorney Hanson’s representation led to “a different outcome” or a 

“different result,” and that they did not make “a difference.” In its order, the court 

articulated this standard as an overarching principle it would apply to Theriault’s 

challenges generally, and it then applied this standard to a number of Theriault’s 

specific complaints about Attorney Hanson’s work on the case.6 On this basis, the 

court denied Theriault’s petition.

[¶25] By formulating and applying the prejudice requirement in this way, 

the court used only a portion of the prejudice standard prescribed in Strickland: it 

limited its inquiry to the question of whether the outcome of the criminal trial 

would have been different absent any ineffectiveness in legal representation. The 

court, however, did not go on to apply the remaining aspects of the unitary 

Strickland prejudice test, which also requires the court to determine if there is a 

“reasonable probability” that the ineffectiveness resulted in a different outcome—

meaning, whether ineffective assistance of counsel rose to the level of 

 6 For several of Theriault’s specific challenges, the court framed the prejudice standard more 

generally, concluding, for example, that certain deficiencies did not “cause[] him prejudice” and that 

Theriault had not “affirmatively demonstrate[ed] prejudice.” As noted in the text, however, the court 

rejected Theriault’s other challenges based on the outcome-determinative test. 
16

compromising the reliability of the conviction and undermining confidence in it. 

By employing only a portion of the Strickland principle, the court in effect 

employed the outcome-determinative test rejected in Strickland because it 

determined only whether the outcome was likely different than it would have been 

if the petitioner had been properly represented, without considering whether the 

guilty verdict and resulting conviction were unreliable and not worthy of 

confidence. 466 U.S. at 693 (“[A] defendant need not show that counsel’s 

deficient conduct more likely than not altered the outcome in the case.”). In this 

case, the effect of the outcome-determinative standard of prejudice was to impose 

on Theriault a greater burden than, as a constitutional matter, he was obligated to 

bear.

[¶26] For several of Theriault’s challenges to Attorney Hanson’s conduct, 

Theriault offered no evidence whatever of how he was prejudiced by those alleged 

failures. For example, Theriault did not present any evidence about what 

information a private investigator might have found to provide an exculpatory 

explanation for the victim’s accusations. On those points, Theriault failed to 

demonstrate entitlement to post-conviction relief regardless of how one might 

characterize the element of prejudice, because the complete absence of any 

evidence of prejudice would preclude any prospect of proving that the guilty 

verdict was unreliable and not entitled to confidence.
17

[¶27] On other aspects of Theriault’s claims, however, the court’s 

assessment of prejudice was necessarily more nuanced. For example, to address 

Theriault’s claim that Attorney Hanson failed to present evidence that Theriault did 

not have a PlayStation at his house, the court was required to evaluate the 

prospective impact of that evidence to impeach the victim’s testimony that she was 

using that type of game at Theriault’s house on the day of the assault. This 

assessment of the evidence was necessary because, as the court observed, the jury 

in fact was presented with other impeachment evidence: during her report of the 

assault to the nurse, the victim recounted the assault itself in a way that was 

different than what she described during her trial testimony, and Theriault 

presented evidence to the jury that some aspects of the victim’s accusations may 

have been influenced by the way her sister elicited information when the victim 

first disclosed the assault. The court was therefore called to gauge the effect of 

additional impeachment evidence, even though it may have related to a collateral 

matter. In doing so, however, the court erroneously employed the 

outcome-determinative test, and on that basis, rejected Theriault’s argument that 

Attorney Hanson’s failure to present the evidence about the PlayStation resulted in 

prejudice.
18

[¶28] Additionally, Theriault argued in the trial court, as he does on appeal,7

that he was prejudiced by Attorney Hanson’s failure to present any evidence of the 

prior exculpatory statements made by the victim during the Spurwink evaluation, 

when she reportedly said that no one—including Theriault—had done anything to 

her that she did not like, and, more specifically, that Theriault had not sexually 

assaulted her. The court did not discuss this evidence in its order, and neither party 

requested that the court issue findings on the issue. In those circumstances, we 

ordinarily would infer that a court made factual findings sufficient to support its 

ultimate conclusion.8 See State v. Dodd, 503 A.2d 1302, 1307 (Me. 1986); 

Alexander, Maine Appellate Practice § 416(e) at 273 (4th ed. 2013). In the 

specific circumstances of this case, however, the legitimacy of that inference is 

undermined, because it would attribute to the court the use of a legal principle that 

it misstated several times in its order.

 7

 Both in the trial court and on appeal, Theriault has contended that Attorney Hanson failed to 

cross-examine the victim about her inconsistent statements and that he did not call other witnesses who 

could have testified about those inconsistent statements. The record plainly demonstrates that one such 

witness is the Spurwink evaluator.

8 One way we could make that inference in this case is to consider the form of the evidence of the 

Spurwink evaluation presented to the court at the post-conviction hearing, which was a report written by 

the LCSW who conducted the evaluation. The evaluator herself did not testify at the post-conviction 

hearing, and Theriault did not establish the foundation that would be necessary for admission into 

evidence of the report itself, which is hearsay, see M.R. Evid. 801-803. The report, however, was 

admitted into evidence at the post-conviction hearing without objection; neither party has suggested that 

the information in the report could not have been presented in admissible form at trial; and the State has 

not argued that Theriault’s prejudice argument fails on this basis. Under these circumstances, we 

conclude that the manner in which evidence of the Spurwink evaluation was presented to the court is not a 

reason to reject Theriault’s argument that he was prejudiced by Attorney Hanson’s failure to present it at 

the criminal trial.
19

[¶29] We therefore conclude that in analyzing Theriault’s claim that he was 

actually prejudiced by Attorney Hanson’s ineffective representation, the court did 

not fully implement the proper standard of prejudice established in Strickland.

III. CONCLUSION

[¶30] We remand this matter for reconsideration of Theriault’s claims of 

prejudice based on the Strickland rubric. We recognize the Strickland Court’s 

observation that application of the “reasonable probability” test rather than the 

“outcome-determinative test” will “alter the merit of an ineffectiveness claim only 

in the rarest case.” 466 U.S. at 697; Manley, 2015 ME 117, ¶ 13, --- A.3d ---. We 

cannot, however, substitute our judgment for that of the trial court by presuming to 

determine whether, under the proper standard, Attorney Hanson’s alleged 

ineffectiveness resulted in prejudice as that test is prescribed in Strickland. 

Accordingly, we must remand for reconsideration of Theriault’s claim of prejudice 

under that standard.9

 9

 The First Circuit has suggested that in evaluating claims of ineffectiveness arising from trial 

counsel’s failure to present evidence to impeach witnesses who provide incriminating testimony, the court 

may consider factors such as the strength of the State’s case, the effectiveness of the actual defense 

presentation, and the significance of the impeachment value of evidence that trial counsel failed to 

develop. Gonzalez-Soberal v. United States, 244 F.3d 273, 278 (1st Cir. 2001).

We further note that on remand, if the court concludes that Theriault has proved that under Strickland, 

he was prejudiced by alleged deficiencies in Attorney Hanson’s representation of him, the court will also 

be required to consider whether Theriault has further proved that that representation in fact fell below 

constitutional standards.
20

The entry is:

Judgment vacated. Remanded for further 

proceedings.

SAUFLEY, C.J., concurring.

[¶31] I join fully in the analysis and outcome of the Court’s opinion. I write 

separately because the standards applicable to claims of ineffective assistance of 

counsel have not, historically, been sufficiently clear, and it is worthwhile to 

emphasize the clarifications addressed by the Court today.10

[¶32] The original two-pronged analysis of ineffective assistance of counsel 

claims now presents two potential components within each of its original two 

prongs. To be clear, however, the trial judge may begin the analysis at any point 

that works with the facts of the individual case.

1. Ineffectiveness—The ineffectiveness prong requires the court to 

examine whether counsel’s representation “fell below an objective 

standard of reasonableness.”11 This analysis now encompasses two 

aspects. 

 10 In the matter before us, the trial court did not have the benefit of the clarified analysis of the 

jurisprudence provided in the Court’s opinion today.

11 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
21

(a) Extreme Ineffectiveness.12 The court must examine the 

record and the evidence presented to determine whether the 

representation was so deficient that the defendant will be 

relieved of the burden of proving actual prejudice. This 

“extreme ineffectiveness” analysis may precede other 

components of the analysis. Although it is devoutly to be 

hoped that such substantial failure of counsel will rarely be 

found to exist, the court must engage in this review by the time 

it has completed its analysis.

(b) Ineffectiveness that Causes Actual Prejudice. Absent a 

finding of extreme ineffectiveness, the court must determine 

whether counsel’s conduct constituted ineffectiveness that 

resulted in “actual” prejudice. Because this determination of 

ineffectiveness will be necessary only if the petitioner 

demonstrates actual prejudice, it is often the last part of the 

analysis. Thus a court is fully warranted in moving to the 

question of actual prejudice before addressing this subpart.

2. Actual Prejudice—As the Court has clarified today, actual 

prejudice can be demonstrated in two different ways.

(a) Reasonable Probability Test. To demonstrate actual 

prejudice, the petitioner must demonstrate a “reasonable 

probability” that the result would have been different but for 

counsel’s unprofessional errors, meaning that “counsel’s 

conduct so undermined the proper functioning of the 

adversarial process that the trial cannot be relied on as having 

produced a just result.” Strickland v. Washington, 

466 U.S. 668, 686, 694 (1984). Thus, the court must determine 

whether the ineffective assistance of counsel compromised the 

reliability of the conviction and undermined confidence in it.

To prevail, the “defendant need not show that counsel’s 

deficient conduct more likely than not altered the outcome in 

the case.” Id. at 693. If the court finds that the reliability of the 

 12 Because a finding of extreme ineffectiveness eliminates the requirement of proof of actual 

prejudice, it is sometimes considered a part of the prejudice prong.
22

conviction and the court’s confidence in that conviction have 

been compromised, it must assure that it has completed its 

analysis of the ineffective assistance prong because, once again, 

prejudice that is unrelated to the claimed ineffective assistance 

of counsel does not fall within this analysis.13

(b) Outcome Determinative Test. The outcome determinative 

test is in essence a specific application of the reasonable 

probability test. In many instances, if the petitioner 

demonstrates by a preponderance of the evidence that counsel’s 

alleged deficient representation altered the outcome of the case, 

the court need go no further with regard to the determination of 

prejudice because, by definition, the petitioner has proved that 

the result is unreliable.

14 Prejudice has been proved, as long as 

the court has found deficiency in representation. 

To be clear, a petitioner may prevail in demonstrating actual 

prejudice by meeting the outcome determinative test, but the 

petitioner need not meet this test to prevail on the reasonable 

probability test.

[¶33] With the Court’s careful clarification today on this last point and the 

trial court’s reference solely to the outcome determinative test, it is appropriate for 

us to remand the matter to the trial court for application of the law as it relates to 

actual prejudice. Thus, I cannot join the dissent’s approach because it usurps the 

authority of the trial court to make the determination in the first instance.

 13 Although there may be other remedies for the petitioner, claims of ineffective assistance of counsel 

are distinct and should not be blurred with others analytically.

14 But see Court’s Opinion ¶ 21 n.5.
23

ALEXANDER, J., dissenting.

[¶35] I respectfully dissent. 

[¶36] The post-conviction record in this appeal reveals a too common, 

shotgun style approach to post-conviction advocacy. That approach challenges 

many tactical choices by trial counsel—usually about things allegedly not done—

with the hope that, years after the events at issue, Monday morning quarterbacking 

about one or a few of trial counsel’s many tactical choices will find a sympathetic 

ear of a post-conviction court or an appellate court willing to second guess trial 

counsel and order a new trial or a new hearing. 

[¶37] In its opinion the Court rejects the principal arguments asserted by 

post-conviction counsel. The Court then takes a collateral argument about not 

cross-examining the victim about inconsistent statements, revises post-conviction 

counsel’s cross-examination argument to become an allegation that trial counsel 

should have affirmatively presented witnesses to testify about the inconsistent 

statements, purports to clarify the standard for post-conviction review of trial 

counsel’s performance, and vacates the post-conviction court’s judgment. To 

vacate and announce its clarification of the law, the Court abandons a fundamental 

principle of limited appellate review of trial court decisions and holds that when 
24

the post-conviction court did not make findings on an issue, and none were 

requested by counsel, the Court, contrary to convention, will infer that the

post-conviction court would have made erroneous statements of law had it 

articulated the findings that were not requested. 

[¶38] The standard for post-conviction review of trial counsel’s tactical 

choices was well stated in Strickland v. Washington, 466 U.S. 668, 689 (1984): 

“Judicial scrutiny of counsel's performance must be highly deferential.” 

Elaborating on that standard, the Strickland Court observed:

It is all too tempting for a defendant to second-guess counsel’s 

assistance after conviction or adverse sentence, and it is all too easy

for a court, examining counsel’s defense after it has proved 

unsuccessful, to conclude that a particular act or omission of counsel 

was unreasonable. . . . A fair assessment of attorney performance 

requires that every effort be made 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. Because of the difficulties inherent in making the evaluation, 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. . . .” There are countless ways to provide effective assistance 

in any given case. Even the best criminal defense attorneys would not 

defend a particular client in the same way. . . .

The availability of intrusive post-trial inquiry into attorney 

performance or of detailed guidelines for its evaluation would 

encourage the proliferation of ineffectiveness challenges. Criminal 

trials resolved unfavorably to the defendant would increasingly come 

to be followed by a second trial, this one of counsel’s unsuccessful 

defense. Counsel’s performance and even willingness to serve could 
25

be adversely affected. Intensive scrutiny of counsel and rigid 

requirements for acceptable assistance could dampen the ardor and 

impair the independence of defense counsel, discourage the 

acceptance of assigned cases, and undermine the trust between 

attorney and client. 

466 U.S. at 689-690 (internal citations omitted).

[¶39] The record here does not demonstrate that Theriault, even with the 

clarity of hindsight, has overcome the “strong presumption that counsel's conduct 

falls within the wide range of reasonable professional assistance.” Id. 689.

I. CASE HISTORY

[¶40] The case history is extensively stated in the Court’s opinion. Only the

key points related to the issues on post-conviction review are stated here.

[¶41] On March 14, 2008, Mark Theriault drove the six-year-old victim and 

her twenty-two-year-old sister to a nearby store. Theriault, who is not related to 

the victim, invited the victim and her sister to return to his house. The sister 

refused, but the victim was taken alone, by Theriault, to his house. There, the 

victim took a bath, played a video game, and then was sexually assaulted. At the 

2011 trial, the victim testified that sexual assault occurred in Theriault’s bedroom 

after Theriault had removed her clothes. 

[¶42] Later on March 14, the victim returned home with wet hair and said 

that she had taken a bath. When her sister asked about the wet hair, the victim 

became quiet. Later, the victim’s sister asked if Theriault had seen the victim 
26

naked and if Theriault had touched her “down there,” referring to the victim’s 

genitals. Becoming emotional, the victim said that Theriault had seen her naked 

and touched her. 

[¶43] The victim’s sister reported the disclosure to their mother, who then 

drove the victim and her sister to a nearby hospital. The victim and her sister 

continued to discuss the sexual assault during the ride. At the hospital, the victim 

was assessed for purposes of medical treatment by a registered nurse. During the 

evaluation, the victim told the nurse that after she had taken a bath, Theriault had 

called her into the living room and touched her over her clothing “down there,” 

which the victim identified by pointing toward her genitals. In closing argument at 

the 2011 trial, trial counsel focused on the inconsistencies in the versions of events 

the victim had testified to at trial, previously stated to her family, and previously 

stated to the nurse at the hospital. 

[¶44] The nurse at the hospital had referred the victim for a forensic 

evaluation at The Spurwink Child Abuse Program, which specializes in pediatric 

sexual abuse assessments and interviews. At Spurwink, a psychosocial evidentiary 

assessment was conducted by a licensed clinical social worker. The social 

worker’s report was presented at the post-conviction hearing. The report stated

that during the interview of the victim conducted on March 25, 2008, “When asked 

if somebody had done something to her that she does not like, [the victim] stated, 
27

‘No.’” The report also stated, “When asked if [Theriault] does something that she 

does not like, she stated, ‘Hmmm, no.’” According to the Spurwink report, the 

victim also initially denied that anything had happened “to her privates.” The 

victim then agreed that someone had touched her “privates” and, in response to a 

series of questions, described at least one incident when Theriault sexually 

assaulted her. No evidence about the Spurwink interview was presented at trial.

[¶45] Theriault did not testify or present any evidence at trial. The jury 

found him guilty. After sentencing, trial counsel filed a notice of appeal and an 

application for leave to appeal the sentence. Theriault’s current post-conviction 

attorney then entered his appearance. Trial counsel was given leave to withdraw.

Theriault’s application to allow an appeal from sentence was denied. After his 

current counsel failed to file a brief, Theriault’s direct appeal was dismissed for 

want of prosecution. The petition for post-conviction review was filed nearly a 

year after the direct appeal was dismissed.

II. POST-CONVICTION COURT PROCEEDINGS

[¶46] In his post-conviction filings, and in advocacy before the 

post-conviction court, Theriault asserted numerous claims of ineffective assistance 

by trial counsel. The record indicates that the principal focus of advocacy before 

the post-conviction court were claims that trial counsel had not (1) adequately 

consulted with Theriault and prepared him to testify at trial; (2) asserted and 
28

presented evidence identifying the victim’s brother and step-father as alternative 

suspects; and (3) sufficiently investigated the case and identified facts or expert 

witnesses to support Theriault’s defense and attack the victim’s credibility. 

[¶47] The specific claims of ineffective assistance directed at trial counsel 

in the post-conviction proceeding included:

1. Insufficient pretrial communication and contacts with Theriault;

2. Failure to prepare Theriault to testify and to allow Theriault to make a 

rational decision to testify in his own defense;

3. Failure to hire a private investigator to investigate his case and perhaps 

develop evidence that the victim had a motive to lie and that the victim’s brother 

and stepfather should be considered alternative suspects;

4. Failure to call unnamed witnesses who allegedly would have testified to 

inconsistences in the victim’s statements, without indication of who the witnesses 

were or what they might have testified to;

5. Failure to retain expert witnesses to (a) discuss the impact of suggestive 

interview techniques on children, and (b) explain the significance of the lack of 

physical findings of an assault; 15

 15 The record does not disclose the basis for the claim that calling an expert witness to testify about 

the lack of physical findings of an assault might have benefited the defense in an unlawful sexual contact 

case. In such cases, testimony about the lack of physical findings indicating an assault usually is offered 

by and benefits the State. Theriault’s claim on this point may be an example of making every conceivable 
29

6. Failure to request an order to allow review of the victim’s alleged DHHS 

records, but without any indication, by post-conviction counsel, that DHHS records 

existed, or that, if they did exist, what relevant information they might contain;

7. Failure to challenge the by then nine-year-old victim’s competency to 

testify at trial, but without any indication of any basis that trial counsel or the trial 

court might have had to question the victim’s competence at trial; 

8. Failure to call character witnesses to testify to Theriault’s good character 

traits, although such evidence would have opened the door for the State to ask 

questions about Theriault’s prior bad acts, including a Connecticut conviction for 

child endangerment and a possible sexual assault charge in New Mexico; 

9. Failure to call a police officer who had recorded some inconsistent 

statements from the victim and other family members, although such an inquiry 

could have opened the door to the officer’s testimony about a conversation with 

Theriault, in which Theriault admitted to unrelated criminal conduct in other states 

and got into a heated argument with the officer “flip[ping] him off”;

10. Failure to cross-examine the victim about her trial testimony that on the 

day of the incident, she played a PlayStation video game at Theriault’s home, after 

Theriault had informed trial counsel that he did not own a PlayStation; and

 criticism about things that trial counsel allegedly failed to do in the hope that some claim might find 

traction. 
30

11. Failure to cross-examine the victim about the Spurwink interview 

during which she initially stated that Theriault had not sexually assaulted her and 

no one had touched her privates, but later stated that someone had touched her 

privates and that Theriault had sexually assaulted her. 

[¶48] On this last point, Theriault’s brief to the post-conviction court, his 

memorandum to us in support of allowing this appeal, M.R. App. P. 19(c), and his 

brief to us on appeal, each, using nearly identical language, argued only that trial 

counsel should have cross-examined the victim about her statements made during 

the Spurwink interview. Theriault’s only argument regarding the Spurwink 

interview, in his brief to us, is under a heading “Cross-examination of [the 

victim].” There Theriault argues, after referencing the Spurwink interview, that 

“[t]rial counsel utterly failed in this most basic role of cross-examining a 

complainant.” None of Theriault’s advocacy suggested, as the Court now 

determines, that trial counsel may have erred by not affirmatively presenting a 

witness describing the victim’s inconsistent statements in the Spurwink interview. 

[¶49] The trial transcript indicates that at trial, Theriault’s counsel 

questioned the State’s witnesses about inconsistencies between the victim’s trial 

testimony and her prior statements to family members and personnel at the local 

hospital. Trial counsel’s examination of the State’s witnesses also raised the issue 

of whether the witnesses’ questioning of the victim may have suggested or 
31

prompted her statements that Theriault had sexually assaulted her. In closing 

arguments, trial counsel argued that reasonable doubt about guilt was created by 

the inconsistencies in the victim’s trial testimony and her prior statements and by

the possible influence the questions she was asked on the evening of the event may 

have had on her statements. 

[¶50] Trial counsel’s reasons for not cross-examining the victim more

extensively were demonstrated at the post-conviction hearing. There, trial counsel

testified that, while the victim was testifying, he could see members of the jury 

making a connection with her and that some jurors were crying. Consequently, 

trial counsel testified, he decided it was most important to limit cross-examination 

of the victim to get her off the stand as quickly as possible.

[¶51] Trial counsel’s choice to limit cross-examination of the victim in light 

of his concerns about jury sympathy for the victim cannot be characterized as 

ineffective assistance—a deficiency indicating “serious incompetency, 

inefficiency, or inattention of counsel amounting to performance . . . below what 

might be expected from an ordinary fallible attorney,” Aldus v. State, 2000 ME 47, 

¶ 12, 748 A.2d 463.

16 As a nationally respected text on trial advocacy by a Maine 

 16 The post-conviction court referenced the same standard for determining ineffective assistance, 

citing Strickland v. Washington, 466 U.S. 668 (1984), and Lang v. Murch, 438 A.2d 914, 915 (Me. 1981), 

one of our earlier post-conviction opinions that used nearly identical language.
32

author notes, sometimes the best cross-examination is no cross-examination at 

all.17 

III. THE STRICKLAND TWO-PART TEST

[¶52] The Court’s opinion states: “To prevail in a post-conviction 

proceeding based on an alleged constitutional deprivation of counsel, the petitioner 

must demonstrate two points: first, ‘that counsel’s representation fell below an 

objective standard of reasonableness,’ and second, that ‘errors of counsel . . . 

actually had an adverse effect on the defense.’” (¶ 14, citing and quoting 

Strickland).

[¶53] Previously, we have described the petitioner’s burden on ineffective 

assistance of counsel claims as a two-part test: “First, we consider ‘whether there 

has been serious incompetency, inefficiency, or inattention of counsel amounting 

to performance . . . below what might be expected from an ordinary fallible 

attorney.’ Second, we determine ‘whether any such ineffective representation 

likely deprived the defendant of an otherwise available substantial ground of 

defense.’” Gauthier v. State, 2011 ME 75, ¶ 12, 23 A.3d 185 (citations omitted). 

See also Strickland, 466 U.S. at 686, noting that the “prejudice” or “adverse effect” 

test involves an inquiry into whether “counsel’s conduct so undermined the proper 

 17 Peter L. Murray, Basic Trial Advocacy, 157-158 (1995).
33

functioning of the adversarial process that the trial cannot be relied on as having 

produced a just result.”

[¶54] Following this general observation, the Strickland opinion articulates 

its widely used two-part test:

A convicted defendant’s claim that counsel’s assistance was so 

defective as to require reversal of a conviction or death sentence has 

two components. First, the defendant must show that counsel’s 

performance was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance prejudiced the 

defense. This requires showing that counsel's errors were so serious 

as to deprive the defendant of a fair trial, a trial whose result is 

reliable. Unless a defendant makes both showings, it cannot be said 

that the conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable.

Id. 687.18

IV. REVIEW OF THE POST-CONVICTION DECISION

[¶55] A post-conviction petition must be denied if the petitioner fails to 

maintain his or her burden to demonstrate entitlement to relief on either element of 

the two-part test. Here, the post-conviction court, without reaching the 

competence of counsel issue, decided that its “analysis of the prejudice prong is 

determinative of this petition.” The post-conviction court stated generally, “If a 

post-conviction petitioner proves ineffective assistance, he must also demonstrate 

 18 Strickland was a death penalty case that included claims of incompetence of counsel in both the 

trial and the sentencing phase of the case.
34

that the outcome of the proceedings would have been different but for counsel’s 

performance,” a statement with which the Court takes issue.

[¶56] The post-conviction court then proceeded to address many of 

Theriault’s specific challenges, finding, in each instance, that Theriault had not 

demonstrated prejudice—the term drawn from Strickland—resulting from trial 

counsel’s allegedly inadequate representation of him. The record indicates that for 

many of Theriault’s challenges, Theriault had offered no evidence whatsoever of 

how he was prejudiced by the alleged failures to hire a private investigator, 

investigate to find alternative suspect evidence, retain experts, or call unnamed 

witnesses to demonstrate additional inconsistencies in the victim’s testimony. 

[¶57] On Theriault’s challenges (1) through (9), listed above, the Court 

concludes, and I agree, that: “Theriault failed to demonstrate entitlement to 

post-conviction relief regardless of how one might characterize the element of 

prejudice, because the complete absence of any evidence of prejudice would 

preclude any prospect of proving that the guilty verdict was unreliable and not 

entitled to confidence.” Court’s Opinion ¶ 26.

[¶58] That leaves for decision only issues (10), the failure to inquire further 

about the victim’s statement that she had used a PlayStation video game at 

Theriault’s home, and (11), the failure to cross-examine the victim about the 

inconsistencies in her statements during the Spurwink interview. Revising 
35

Theriault’s argument, the Court recharacterizes issue (11) from a failure to 

cross-examine to a failure to present evidence, presumably by calling a witness 

from Spurwink to testify about the victim’s inconsistent statements in the 

Spurwink interview. The Court then decides on these two points, points that were 

not the primary points argued to the post-conviction court, that the post-conviction 

court’s improper wording of its decision as to the PlayStation issue is enough to 

require that the judgment be vacated. 

[¶59] On the PlayStation issue, the record has gaps identical to those the 

Court identifies in rejecting claims (1) through (9). The record does not indicate 

how evidence that Theriault did not have a PlayStation video game in his home 

could have been presented except (1) through further cross-examination of the 

victim—a tactical choice properly rejected based on the jury’s perceived 

sympathetic reaction to the victim, or (2) by calling Theriault to the stand, contrary 

to the tactical decision approved by the post-conviction court and affirmed in the 

Court’s opinion. The record is silent as to whether Theriault may have had other 

video games in his home and whether the nine-year-old victim, recalling playing a 

video game when she was six, used the term “PlayStation” as a generic reference 

to any video game, or whether she recognized and recalled the exact model of the 

game she was playing. 
36

[¶60] The post-conviction court rejected the PlayStation challenge, noting 

that at trial evidence was presented that the victim told the nurse that Theriault had 

touched her over her clothing, which was inconsistent with the victim’s trial 

testimony that she was not wearing clothes at the time of the assault. The 

post-conviction court found that because the jury appeared to have accepted the 

victim’s testimony despite her contradictory statements about the incident itself, 

evidence on a collateral issue, that Theriault did not have a PlayStation or other 

video game—if that evidence existed—was not “likely to have produced a 

different result.” 

[¶61] The Court characterizes this statement as an erroneous “outcome 

determinative test” justifying vacating the judgment. Court’s Opinion ¶ 27. But 

the Court approves the post-conviction court’s rejection of the nine other claims, 

using similar, allegedly flawed language, where, like the PlayStation claim, there 

was no evidentiary support for entitlement to relief, regardless of how one 

characterized the element of prejudice. The record lacks any indication of how the 

PlayStation evidence, if it existed, might have been presented, or how the tactical 

choice not to cross-examine the victim about the presence of some video game “so 

undermined the proper functioning of the adversarial process that the trial cannot 

be relied on as having produced a just result.” Strickland, 466 U.S. at 686. 
37

[¶62] The Court’s ruling on the absence of Spurwink statement 

cross-examination, as post-conviction counsel characterized it, or the absence of 

Spurwink statement evidence, as the Court recharacterizes counsel’s argument, is 

based on an even thinner reed.

[¶63] As the Court’s opinion correctly recognizes: “The [post-conviction] 

court did not discuss this [Spurwink] evidence in its order, and neither party 

requested that the court issue findings on the issue.” Court’s Opinion ¶ 28. Thus, 

there is no improper use of words in the post-conviction court’s finding on this 

issue, and the lack of a request for findings suggests the limited attention the 

post-conviction court and Theriault gave to this issue in the post-conviction 

proceedings. 

[¶64] “In those circumstances”, the Court’s opinion states, “we ordinarily 

would infer that a court made factual findings sufficient to support its ultimate 

conclusion.” Court’s Opinion ¶ 28. That principle is well established in the 

jurisprudence of appellate review. See Pelletier v. Pelletier, 2012 ME 15, ¶ 20, 

36 A.3d 903; Sutherland v. Morrill, 2008 ME 6, ¶¶ 4-5, 940 A.2d 192; Lyons v. 

Baptist Sch. of Christian Training, 2002 ME 137, ¶ 13, 804 A.2d 364; State v. 

Dodd, 503 A.2d 1302, 1307 (Me. 1986) (stating that when there has been no 

request for findings of fact pursuant to M.R. Civ. P. 52(a), or M.R. Crim. P. 23(c)

(now M.R.U. Crim. P. 23(c)), we will infer that the trial court found all the facts 
38

necessary to support its judgment, if those inferred findings are supportable by the 

evidence in the record).

[¶65] In its opinion, the Court abandons this sound principle of appellate 

review, stating: “In the specific circumstances of this case, however, the legitimacy 

of that inference is undermined, because it would attribute to the court the use of a 

legal principle that it misstated several times in its order.” Court’s Opinion ¶ 28. 

The Court’s “several times” reference must be to portions of the post-conviction 

order that it affirms or to the post-conviction court’s single comment deciding the 

PlayStation issue.

V. LEGAL ANALYSIS

[¶66] As the Strickland opinion states, the post-conviction review process is 

not an invitation to revisit and second-guess trial tactics that, in hindsight, have 

proved unsuccessful. 466 U.S. at 689. Although not completely insulated from 

review, strategic and tactical decisions of trial attorneys deserve significant 

deference. Id. To demonstrate that an attorney’s trial tactics were sufficiently 

ineffective to justify vacating a conviction, such decisions must be proved to have 

been “manifestly unreasonable,” Pineo v. State, 2006 ME 119, ¶ 13, 908 A.2d 632, 

indicating “serious incompetency, inefficiency, or inattention of counsel 

amounting to performance . . . below what might be expected from an ordinary 

fallible attorney.” Aldus, 2000 ME 47, ¶ 12, 748 A.2d 463.
39

[¶67] In appellate review of a post-conviction court’s findings, the facts 

underlying the trial and 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. 

Further, “[w]e 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. Likewise, the finding of whether 

the petitioner was prejudiced by his attorney’s error is a factual finding reviewed 

for clear error.” Gauthier, 2011 ME 75, ¶ 13, 23 A.3d 185.

[¶68] Thus, unless unsupported in the record, and there is no suggestion of 

that, we must accept the facts as the post-conviction court found them, and 

construe them most favorably to the post-conviction court’s decision. 

[¶69] The Court determines that the post-conviction court erred, and its 

judgment must be vacated because, for the PlayStation issue, the post-conviction 

court did not consider, or for the Spurwink issue, the Court infers that it did not 

consider, whether there was a “reasonable probability” that “the guilty verdict and 

resulting conviction were unreliable and not worthy of confidence.” Court’s 

Opinion ¶ 25 (citing Strickland, 466 U.S. at 693).

[¶70] Regardless of whether one utilizes the Court’s articulation of the 

Strickland standard quoted from page 693 in Strickland, or the standard actually
40

stated in Strickland, at 687, quoted above in this opinion at ¶ 54, the Court’s 

opinion disregards the insignificance of the issues the Court relies on to vacate the 

judgment. 

[¶71] The victim’s “PlayStation” reference at trial, and Theriault’s 

allegation that there was no PlayStation in his home, was irrelevant to the victim’s 

credibility—or any other trial issue— because there was no evidence that (1) the 

victim’s reference at trial to what she played with when she was six was 

product-specific, not generic; or (2) a witness was available to testify at trial that, 

three years prior to trial, there was no PlayStation or other video game in 

Theriault’s home. 

[¶72] Without such evidence, Theriault failed to establish any “reasonable 

probability” that trial counsel’s tactics regarding the PlayStation issue were enough 

to “undermine the confidence in the outcome” of the trial. Just as it determined the 

first nine challenges, the Court should determine, as a matter of law, that on this 

irrelevant or insignificant issue, Theriault has failed to demonstrate either 

incompetence of counsel or prejudice entitling him to post-conviction relief.

[¶73] That leaves only the issue of the inconsistent statements in the 

Spurwink interview. If this is a lack of cross-examination of the victim issue, as 

post-conviction counsel characterized it, then, as discussed above, no 

ineffectiveness of counsel is demonstrated in the tactical choice not to examine the 
41

victim extensively after observing the jury’s reaction to the victim. If no 

ineffectiveness is demonstrated, the prejudice issue, regardless of how the 

post-conviction court characterized it, is not reached.

[¶74] If the issue is as the Court characterizes it, whether Theriault was 

prejudiced by trial counsel’s “failure to present any evidence of the prior 

exculpatory statements made by the victim during the Spurwink evaluation, when 

she reportedly said that no one—including Theriault—had done anything to her 

that she did not like, and, more specifically, that Theriault had not sexually 

assaulted her,” Court’s Opinion ¶ 28, there are still no grounds to vacate, even if 

we assume, as the Court apparently does, that this “evidence” issue, though not 

argued by counsel, was timely asserted and preserved.

[¶75] On this issue, the Court should not create an exception to its 

well-accepted principle of appellate review that, absent a request for findings, it 

will infer that a trial court properly made factual findings sufficient to support its 

ultimate conclusion on an issue before it. Even if the Court is ready to infer error 

when it should not, there still can be no “reasonable probability” that the tactical 

choice not to call the Spurwink witness was enough to “undermine the confidence 

in the outcome” of the trial.

[¶76] The Spurwink evidence would have to have been presented through a 

live witness who had treated the victim, not a copy of a report, as was offered in 
42

the post-conviction hearing. The post-conviction court would have known there 

was good reason for the defense to avoid the Spurwink witness in this case. 

Contrary to the statement in the Court’s Opinion ¶ 28, the Spurwink witness’s 

testimony would not have been limited to “the prior exculpatory statements made 

by the victim during the Spurwink evaluation.” After presenting those 

“exculpatory” statements, the witness, in response to cross-examination by the 

State, would certainly have testified to the statements by the victim that she had 

been sexually assaulted by Theriault.

[¶77] In the artificial world of post-conviction Monday morning 

quarterbacking, it is certainly not out of bounds to allege that, as a tactic to attack 

the victim’s credibility, the Spurwink witness should have been called by the 

defense at trial. But in the real world of a criminal trial, defense counsel’s calling 

this Spurwink witness may itself have demonstrated incompetence of counsel. To 

quote the Strickland standard itself, certainly the choice not to call this likely 

adverse witness was not an error “so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.” 466 U.S. at 687. The record demonstrates 

neither incompetence of counsel, nor prejudice to undermine the confidence in the 

outcome of the trial in the tactical choice not to call the Spurwink witness. This 

issue, even if characterized as failure to present evidence, rather than failure to 

cross-examine the victim, does not justify vacating the judgment.
43

VI. CONCLUSION

[¶78] Throughout its opinion addressing Theriault’s many complaints about 

trial counsel’s tactical choices, the post-conviction court may not, in each instance, 

have perfectly phrased its findings and conclusions. But in its opinion, and in its 

result, the post-conviction court committed no error. And it certainly committed 

no error in addressing the two collateral issues of trial tactics that the Court seizes 

upon to vacate the judgment. Neither of these issues is sufficient to undermine 

confidence in the outcome of the trial. I would affirm the post-conviction court’s 

judgment in its entirety. 

On the briefs and at oral argument:

Richard L. Hartley, Esq., Law Office of Richard L. Hartley, P.C., Bangor, 

for appellant Mark J. Theriault

Todd R. Collins, District Attorney, 8th Prosecutorial District, Caribou, for 

appellee State of Maine

Aroostook County Superior Court (Caribou) docket number CR-2012-437

FOR CLERK REFERENCE ONLY