MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 162 Docket: A r o - 15

- 333 Argued: February	6,	2017 Decided: July 20 ,	2017 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.
JAMES	A.	PHILBROOK

v. STATE	OF	MAINE

SAUFLEY,	C. J. [¶1] J ames	 A.	 Philbrook	 appeals	 from	 a	 judgment in	 which	 the	 court (Aroostook	County, Hunter,	J. )	denied	his petition	 f or	post
- conviction review seeking relief	 from	 a	 judgment of	 conviction entered	 after a	 jury found him guilty of theft	 by	 misapplication	 of	 property	 (Class	 B), 17

- A	 M.R.S. § 358(1)(B)(1)	 (2016) ,	 and	 securities	 fraud	 (Class	 C),	 32	 M.R.S.	 §§ 16501 , 16508 (201 2 ). 1 He	 contends	 that the evidenc e	 presented	 at	 his post
- conviction	 hearing	 compelled	 the court	 to	 find	 that	 defense	 counsel’s representation during	plea	negotiations ,	and counsel’s illness	and	inattention

1 Title	32	M.R.S.	 §	16508	has	since	been	amended. See P.L.	2013,	ch.	39,	 §	2	 (effective	Oct.	9, 2013)	(codified	at	32	M.R.S.	§	16508(1)	(2016)).2 at	 trial , deprived	Philbrook	of	 the	effective	assistance	of	counsel , resulting	in prejudice. We	affirm	the	judgment.
I.		BACKGROUND [¶2 ] Philbrook	was convicted of	theft	by	misapplication	of	property	and securities	fraud upon	evidence	that	he	persuaded his longtime insurance	and estate	 planning clients	 to	 transfer	 a	 total	 of	 $195,000 to	 his	 account	 for investment	 in	 a	 Pay

- Per

- View	 event	 and	 another	 investment	 he	 vaguely described	as	having	to	do	with	student	loans. See State	v.	Philbrook ,	2013	ME 86,	¶¶ 1

- 6,	81	A.3d	326

. Instead	of	investing	the ir money,	however,	Philbrook used	it	to	repay	money	that	his	son	had	embezzled	from	his	employer	and	to

cover Philbrook’s own ongoing	expenses. Id. ¶¶ 5

- 6.		He	did	not	repay	to his client s	any	of	the	$195,000	that	they	had	invested. Id. ¶	7. [¶ 3 ] The	jur y found Philbrook guilty of	both	charged	counts

. Id. ¶ ¶ 1 ,	8

. T he	court entered	a	judgment	of	conviction and	sentenced	Philbrook	to eight years’ imprisonment for theft	by	misapplication	of	property,	wit h	all	but	three years	suspended, and	three	years	of	probation	with	a	special	condition	that	he pay	 $195,000	in	 restitution , and to three	 years’	imprisonment	 for	 securities fraud, t o	run	concurrent ly with	the	theft	sentence

. Id. ¶	8. Philbrook	appealed to	 us	 from	 that	 judgment and	 argue d,	 among	 other	 things,	 that	 the	 jury3 instruction	provided	by	the	trial	court	had	omitted	a	necessary	element	of	the crime	of	theft. Id. ¶¶ 8

- 9. We concluded	that	the	court	had	not	erred , and we affirmed	the	judgment	in	its	entirety. Id. ¶ ¶ 1 ,	9

. [¶4 ] On	 November	 7,	 2013,	 Philbrook	 filed his	 petition	 for post
- conviction	 review alleging	 the	ineffective	assistance	of	his	 trial	counsel

. See 15	 M.R.S.	 §	 2129	 (2016). In its judgment , entered on	 June	 8,	 2015, the
court found	 that	 Philbrook	 “failed	 to	 prove	 .	 .	 .	 that	 his	 trial	 counsel	 did	 not communicate	to	him	the	State’s	offer	of	a	plea	agreement	and	that	there	was	a reasonable	 probability	 that	 he	 would	 have	 accepted	 it.” With	 respect	 to counsel’s	 assistance	 at trial, the	 court	 found	 that,	 although defense	 counsel was	 coughing	 and at	 times	 felt	 fatigued	 and	 inattentive or lightheaded , Philbrook	 failed	 to	 connect	 counsel’s	 ailment	 to	 any	 particular	 deficiency	 in performance	 or	 to	 identify	 any	 prejudice	 to	 his	 case	 resul ting	 from	 such	 a deficiency. The	 court	 concluded	 that Philbrook	 had	 waived any argument regarding the jury	instruction on	 theft because	 he raised the	issue on	 direct appeal and we resolved	 the	 question	 in	 favor	 of	 the	 State. S ee 15 M.R.S. § 2128(1)	 (2016 ) (“ Errors	 at	 the	 trial	 that	 have	 been

.	 .	 . raised	 on	 a	 direct4 appeal

.	.	. may	not be	raised	in	an	action	for	post

- conviction	review	under	this chapter .	.	.	.”); Philbrook , 2013	ME	86,	¶ 9,	81	A.3d	326. 2 [¶ 5 ] Philbrook did	 not	 move	 for	 further	 findings	 of	 fact. See M.R.U. Crim.	 P.	 23(c). He filed	 a	 notice	 of	 appeal	 and	 submitted	 a	 memorandum seeking	a	certificate	of	probable	cause. See 15 M.R.S.	§	2131(1)	(2016) ; M.R. App.	P.	19(a)(vi),	(c)

. We issued	a certificate	o f	probable	cause ,	and we	now consider Philbrook’s appeal. See M.R.	App. P. 19(f)

. II.		DISCUSSION
A. Burden	of	Proof	and	Standard	of	Review [¶ 6 ]	 	 C laims	 of	 ineffective	 assistance of	 counsel	 raised	 on post
- conviction	 review	 “ are	 governed	 by	 the	 two

- part	 test	 outlined	 in Strickland	 v.	 Washington ,	 466	 U.S.	 668,	 104	 S.	 Ct.	 2052,	 80	 L.	 Ed.	 2d	 674 (1984)

. ” Middleton	v.	State ,	2015	ME	164,	¶	12,	129	A.3d	962

. Applying that test,	a	petitioner	bears	t he	burden ,	at	the	post

- convictio n	trial, of	proving the following: (1) “ ‘ counsel ’ s	 representation	 fell	 below	 an	 objec tive	 standard	 of reasonableness , ’ ” and (2)	“ the	deficient	representation	resulted	in	prejudice. ” Id. (quoting Strickland ,	 466	 U.S.	 at	 688 )

. A	 court	 need	 not	 “ address	 both

2 We	agree	with	the	court	on	this	point	and	do	not	discuss	the	issue	further.5 components	of	the	inquiry	if	the	defendant	makes an	insufficient	showing	on one.” Strickland ,	466	U.S.	at 697 (quotation	marks	omitted). [¶ 7 ]		As	to	the	 first	part	of	the Strickland test,	counsel’s	representation of	a	defendant falls below	 t he	 objective	standard	 of	 reasonableness	if	it	 falls “below	what	might	be	expected from	an	ordinary	fallible	attorney .” Francis v. State ,	 2007	 ME	 148,	 ¶	 4,	 938	 A.2d	 10 (quotation	 marks	 omitted).	 	 “J udicial inquiry	 into	 the	 effe ctiveness	 of	 representation	 i s	 ‘highly	 deferential.’” Middleton ,	2015	ME	164,	¶	13,	129	A.3d	962	 (quoting Strickland ,	466	U.S. at 689 )

. “ The	post

- conviction	court	must	make every	effort	.	.	.	to	eliminate	the distorting	 effects	 of	 hindsight,	 to	 reconstruct	 the	 circumstances	 of	 couns el ’ s challenged	conduct,	and	to	evaluate	the	conduct	from	counsel ’ s	perspective	at the	 time. ” Id. (quotation	 marks	 omitted). “[A] court	 must	 indulge	 a	 strong presumption	that	counsel ’ s	conduct	falls	within	the	wide	range	of	reasonable professional	 assist ance;	 that	 is,	 the	 defendant	 must	 overcome	 the presumption	 that,	 under	 the	 circumstances,	 the	 challenged	 action	 might	 be considered	sound	trial	strategy. ” Id. (quotation	marks	omitted). [¶ 8 ]		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	 proceeding6 would	have	been	different ,”	meaning	that	the	“ ineffective	assistance	of	counsel rose	 to	 the	 level of	 compromising	 the	 reliability	 of	 the	 conviction	 and undermining	confidence	in	it. ” Theriault	v.	State ,	2015	ME	137,	¶ ¶	19, 25,	125 A.3d	 1163 (quotation	marks	 omitted).	 	 A	 conviction	may	 be	 “unreliable	 and not	 worthy	 of	 confidence , ” thus	 satisfying	 the	 “ reasonable	 probability”	 test, even	without	proof	that	a	different	outcome	was “ more	likely	than	not ,”	as	the now	 superseded	 “outcome	 determinative”	 test	would	 require

. Id. ¶¶ 19

- 22, 25 (quotation	marks	omitted)

. [¶ 9 ] In	re viewing	a	post

- conviction	cou rt’ s	findings on	appeal ,	the	facts found	regarding	both	the underlying	trial	and the post
- conviction	hearing	are viewed	 in	 the	 light	 most	 favorable	 to	 the	 post

- conviction	 court ’ s	 judgment.
Lamarre	v.	State ,	2013	ME	110,	¶	2,	82	A.3d	845 ; Heon	v.	State , 2007	ME	131, ¶	 5,	 931	 A.2d	 1068

. Because	 a	 petitioner	 bears	 the	 burden	 of	 proof	 at	 the post
- conviction	 hearing, “ w e will	 not	 disturb	 the	 court ’ s	 determination	 that [the	petitioner] faile d	to	satisfy	his	burden	unless the	evidence	compelled	the court	to	fi nd	to	the	contrary.” Laferriere	v.	State ,	1997	ME	169,	¶	6,	697	A.2d
1301 (quotation	marks	omitted); see Heon ,	2007	ME	131,	¶	8,	931	A.2d	1068

.

“ On	review	after	a	hearing	in	which	the	court	has	stated	its	findings,	and	there has	been	no	motion	for	furthe r	findings,	we	will	infer	that	the	court	found	all7 the	 facts	 necessary	 to	 support	 its	 judgment	 if	 those	 inferred	 findings	 are supportable	by	evidence	in	the	record. ” State	v.	Connor ,	2009	ME	91,	¶	9,	977 A.2d	 1003

. Only	 legal	 conclusions	 reached	 on	 post

- conviction	 review	 are reviewed	de	novo. See	Fortune	v.	State ,	2017	ME	61,	¶	12,	158	A.3d	512.
B. Review	of	the	Post

- Conviction	Judgment [¶1 0 ] We	 now	 consider	 whether	 the	 evidence	 pr esented	 on post
- conviction	 revi ew	 compelled	 the	 court	 to	 find	 ineffectiveness,	 either ( 1 ) during	plea	negotiations	or	( 2 )	at	trial,	that	resulted	in	prejudice.
1. Effectiveness	of	Assistance During	Plea	Negotiations [¶1 1 ] A	defendant’s Sixth	Amendment	right	to	counsel “ extends	to	the plea

- bargaining	 process. ” Lafler	 v.	 Cooper ,	 566	 U.S.	 156,	 162	 (2012) ; see La f

erriere ,	1997	ME	169,	¶¶	5,	7,	697	A.2d	1301. With	respect	to	the	decision whether	 to	 accept	 a	 plea	 offer,	 “an	 erroneous	 strategic prediction	 about	 the outcome	of	a	trial	is	not	necessarily	deficient	performance .” Lafler ,	566	U.S.	at
174

. When a	defendant	alleges	that	the	rejection	of	a	proposed	plea resulted from the	ineffectiveness	of	counsel,	the defendant	must	show	that , but	fo r	the ineffective assistance of	counsel , there	is	a “ reasonable	probability ” that

• T he	plea	offer	would	have	been	presented	to	the	court ,	meaning that	the defendant	would	have	accepted	the	plea	and	the	prosecution	would	not have	withdrawn it	for	other	reaso ns;8

• T he	court	would	have	accepted the	terms	presented;	and

• T he	terms of	the	offer	would	have	provided for a	less	severe	conviction or	sentence than	the	conviction	or	sentence	ultimately	reached

. Id. at	164. [¶1 2 ] Here,	 the	 court	 found

— wi th evidentiary	 support

— that (1) counsel	 did	 communicate	 to	 Philbrook	 the	 plea	 offer	 from	 the	 State involving	 a	 cap	 of	 two	 years	in	 prison , (2)	 Philbrook	 would	 not	 agree	 to	 an offer	 that	would	require	prison	 time	and	would	accept	only	a	short	sentence
to	 count y	 jail , (3) Philbrook	 never	 stated	 or	 testified	 that	 he	 would have
agree d to	 accept	 the	 offer,	 and	 (4) counsel	 and	 Philbrook	 shared	 a	 level	 of optimism	 that	informed	 their	 strategy	in	 rejecting	 the	 offer. Although	 there was	 evidence	 that	 counsel	 did	 not	 f orward to	 Philbrook each	 letter he exchanged	 with the	 State , the	 evidence	 does	 not	 compel	 a	 finding	 that,	 if Philbrook	 had	 seen	 those	 communications	 instead	 of	 just	 conversing	 about them	 by	 telephone,	 there	 was “ a	 reasonable	 probability	 that .	 .	 .	 [he] would have	accepted	the	plea. ” Id. Accordingly,	the	court was	not	compelled	to	find that	 Philbrook	 establish ed deficient	 representation or	 prejudice during plea negotiations

. See Strickland , 466	U.S.	at	687

- 96; La f

erriere ,	1997	ME	169,	¶	6, 697	A.2d	13 01

.9 2

. Effectiveness	of	Assistance	During	Trial [¶1 3 ] Philbrook next contends	that	his	counsel,	due	to	illness,	failed	to object	 to	 leading	 questions

. Philbrook argues	 that	 he suffered	 prejudice because the	guilty	verdict	and	judgment	of	conviction	are “ unreliable and	not worthy	 of	 confidence,” Theriault ,	 2015	ME	 137,	¶	 25,	 125	A.3d	 1163, due	 to counsel’s alleged unresponsiveness	or	inattention

. Philbrook	also	argues	that prejudice	 may	 be	 legally	 presumed	 because	 “counsel’s	 ineffectiveness amounts	 to	 th e	 constructive	 deni al	 of	 the	 assistance	 of	 counsel. ” Id. ¶	 17 (quotation	 marks	 omitted)

. Philbrook did	 not	 raise	 th e	 issue	 of	 presumed prejudice with the	 trial	 court, however, and	 the refore	 we	 review	 that	 issue only	 for obvious	 error

. S ee M.R.U.	 Crim.	 P.	 52(b); State	 v.	 True ,	 2017	ME	 2, ¶ 15 & n.6, 153 A.3d 106

. [¶1 4 ] Although	 counsel	 was	 ill	 during	 the	 trial,	 the	 court	 was	 not persuaded	 that	 the	 illness	 resulted	 in ineffectiveness ,	 including prejudice	 to Philbrook’s	 case. The	 court	 spec ifically	 articulated the	 “reasonable probability”	 test

— not	 the	 “outcome	 determinative”	 test

— as	 the	 applicable
test and	 found that	Philbrook	had	 failed	 to	establish	prejudice , s ee Theriaul t , 2015	ME	137,	¶¶ 19

- 25,	125	A.3d	1163

. The	court’s	judgment	indicates	that	it “observed	nothing	that	would	have	caused	it	concern	regarding	trial	counsel’s10 ability	to	perform	his	professional	responsibilities	at	trial	of	this	matter,” and the	 trial	 transcript	 demonstrates	 that	 counsel	 presented an	 opening statement, actively cross - examined and	re

- cross - examined witnesses,	directly examined	Philbrook,	and	presented	a cogent closing	argument. [¶1 5 ] Thus,	 even	 if	 the	 court	 did not	 specifically	 use	 the	 words “unreliable	and	not	worthy	of	confide nce,” id. ¶ 25,	w e	infer from the	court’s judgment that	 it was	 not	 persuaded that	 the	 conviction	 was	 unreliable , s ee Connor ,	2009	ME	91,	¶	9,	977	A.2d	1003

. Because Philbrook	has	not indicated that any	 changes	 in	 the content of	 testimony	 would	 have	 resulted	 from objections	to	the form of	the	prosecutor’s	questions ,	and	has	not	argued	 that any	 other specific consequences	 flowed	 from	 counsel’s illness	 or alleged
inattention ,	the	record	does	not	compel	a	finding	of ineffectivene ss or	that	any ineffectiveness	 resulted in prejudice

. See	 L aferriere ,	 1 997	ME	 169,	 ¶	 6,	 697 A.2d	 1301. Absent a	 finding	 that	 counsel ’s	 representation was	 ineffective , there	was	no	“constructive	denial”	of	the	assistance	of	counsel,	and	therefore the	 court	 did	 not	 commit	 obvious	 error	 in	 not	 applying	 that	 concept. Theriault ,	2015	ME	137,	¶	17,	125	A.3d	1163 (quotation	marks	omitted); see M.R.U.	Crim.	P. 52(b); True ,	201 7	ME	2,	¶	15 , 153 A.3d 106.11 The	entry	is: Judgment	affirmed.

Sarah	LeClaire,	Esq.	(orally),	Presque	Isle,	for	appellant	James A. Philbrook Janet	T.	Mills,	Attorney	General,	and Denis	Culley,	Asst.	Atty.	Gen. (orally), Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Aroostook	County	Superior	Cour t	docket number CR

- 2013

- 198 F OR C LERK R EFERENCE O NLY