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	peti tion	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
witn esses	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 gran ted	 Fahnley’s	 petition	 for post
- conviction r eview and	vacated	the conviction	of sexual abuse	of	a	minor3 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	photographe r,	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	 a n	 argument with	 his	 mother,	 so	 he	 returne d	 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	 w ould	 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	up4 to	trial,	Fahnley	“became	distressed	because	trial	counsel	was	not	doing	what [he]	h ad	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	F ahnley’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 alleg ed 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	 th e 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 enti rely on	the alleged victim’s	credibility5 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	als o	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

— whi ch 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 financ ial	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,
t he	portfolio	manager was	not	called to	testify at	the	underlying	criminal	trial regarding	 the	 specifics	 of	 Fa hnley’s	 financial	 situation	 or	 the	impetus	 for	 the cessation	of	financial	contributions	to	the alleged victim’s family

. [¶1 0 ] Two	 other	 witnesses could	 have	 presented	 partial	 alibis	 for Fahnley	during	August	 of	2008. Neither was listed	as a potential witness or6 called	at	trial , but	both	were	a vailable 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

. [¶ 1 1]		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	trip s to	the alleged victim’s	family	home	in western Massachusetts	in mid

- August. [¶1 2 ] At	the post
- conviction hearing,	trial	counsel	testified	that	he	could not	remember	what	changed	between	the	tim e	he	wrote	the	letter	and	the	time of	the	trial,	wh en	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	h e	could	have	expected	and	that	he	was	concerned7 with	presenting	additional	evidence	 that	 the	State	coul d	 then use	against	 the defense

. [¶1 3 ]		Fahnley	testified	at	the post
- conviction hearing	that	he	was	very involved	in	 the	case	 from	 the	beginning	and	 th at	he	brought	all	of	 the	above evidence	to	trial	counsel’s	attention	prior	to	trial.		He	testified	that	he	expected counsel	 to	 in troduce	 the	 credit	 card	 records; that	 he	 had	 wanted	 all	 of	 the
wit nesses	he	identified	to	testify; and	that	when	counsel	did	no t	present	that evidence,	he	was	 “flabbergasted.”		He	would	have	hired	 a	 third	attorney	had time	permitted	him	to	do	so. [¶1 4 ]		After	a	thorough	discussion	of	the	relevant	law , the	post

- conviction court	 ultimately	 found	 that	 Fahnley	 had	 been	 deprived	 of	 t he	 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	 prejudiced8 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.” [¶1 5 ] 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 [¶1 6 ] We	 apply	 “a	 deferential	 standard	 of	 review	 to	 the	 findi ngs	 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	 ev idence	 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

- conv iction	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	 facts9

nece ssary	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 [¶1 7 ] 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 (alterati on	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 ).	 	 Togeth er,	 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	the10 defendant	of	a	fair	trial,	a trial	whose	result	is	reliable, ” Strickland , 466	U.S. at 687. [¶1 8 ] “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	t hat	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). [¶1 9 ]		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 mer it, that	 is	 not	 the st andard	 that	 guides	 our analysis. B ecause the	 court’s	 findings	 regarding	 ineffective	 assistance	 are supported	 by	 competent	 record	 evidence

— including ample	 support	 for its11 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 F OR C LERK R EFERENCE O NLY