MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	162

Docket: Aro-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]	 	James	 A.	 Philbrook	 appeals	 from	 a	 judgment in	 which	 the	 court	

(Aroostook	County,	Hunter,	J.)	denied	his	petition	 for	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 (2012).1 He	 contends	 that	 the	 evidence	 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)).
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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	their 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	

clients	any	of	the	$195,000	that	they	had	invested.		Id. ¶	7.

[¶3]		The	jury found	Philbrook guilty of	both	charged	counts.		Id. ¶¶ 1,	8.		

The	court	entered	a	judgment	of	conviction and	sentenced	Philbrook	to eight	

years’ imprisonment for theft	by	misapplication	of	property,	with	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,	to	run	concurrently with	the	theft	sentence.		Id. ¶	8.		Philbrook	appealed

to	 us	 from	 that	 judgment and	 argued,	 among	 other	 things,	 that	 the	 jury	
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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	 resulting	 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. See	 15 M.R.S.	

§ 2128(1)	 (2016) (“Errors	 at	 the	 trial	 that	 have	 been	 .	 .	 . raised	 on	 a	 direct	
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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	of	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]	 	 Claims	 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	the	burden,	at	the	post-conviction	trial, of	proving	the	

following: (1) “‘counsel’s	 representation	 fell	 below	 an	 objective	 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.
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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	 the	 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).	 	 “Judicial	

inquiry	 into	 the	 effectiveness	 of	 representation	 is	 ‘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	 counsel’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	 assistance;	 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	 proceeding	
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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	reviewing	a	post-conviction	court’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,	“we	 will	 not	 disturb	 the	 court’s	 determination	 that	

[the	petitioner] failed	to	satisfy	his	burden	unless	the	evidence	compelled	the

court	to	find	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	further	findings,	we	will	infer	that	the	court	found	all	
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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

[¶10]	 	 We	 now	 consider	 whether	 the	 evidence	 presented	 on	

post-conviction	 review	 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

[¶11]		A	defendant’s Sixth	Amendment	right	to	counsel	“extends	to	the	

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

Laferriere,	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	for	the	

ineffective	assistance of	counsel, there	is	a	“reasonable	probability” that

• The	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	reasons;
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• The	court	would	have	accepted the	terms	presented;	and	

• The	terms of	the	offer	would	have	provided for a	less	severe	conviction	

or	sentence than	the	conviction	or	sentence	ultimately	reached.

Id. at	164.

[¶12]	 	 Here,	 the	 court	 found—with	 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	 county	 jail, (3)	 Philbrook	 never	 stated	 or	 testified	 that	 he	 would	 have	

agreed 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	 forward	 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	 established deficient	 representation or	 prejudice	 during	 plea	

negotiations.		See	Strickland,	466	U.S.	at	687-96;	Laferriere,	1997	ME	169,	¶	6,	

697	A.2d	1301.
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2. Effectiveness	of	Assistance	During	Trial

[¶13]		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	 the	 constructive	 denial	 of	 the	 assistance	 of	 counsel.”	 Id. ¶	 17	

(quotation	 marks	 omitted).	 Philbrook	 did	 not	 raise	 the	 issue	 of	 presumed	

prejudice	 with the	 trial	 court,	 however,	 and	 therefore	 we	 review	 that	 issue	

only	 for	 obvious	 error.	 See	M.R.U.	 Crim.	 P.	 52(b);	 State	 v.	 True,	 2017	ME	 2,	

¶ 15 & n.6,	153 A.3d 106.

[¶14]	 	 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	 specifically	 articulated	 the	 “reasonable	

probability”	 test—not	 the	 “outcome	 determinative”	 test—as	 the	 applicable	

test	and	 found that	Philbrook	had	 failed	 to	establish	prejudice,	see	Theriault,	

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’s	
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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.		

[¶15]	 Thus,	 even	 if	 the	 court	 did not	 specifically	 use	 the	 words

“unreliable	and	not	worthy	of	confidence,”	id. ¶ 25,	we	infer from	the	court’s

judgment	 that	 it was	 not	 persuaded that	 the	 conviction	 was	 unreliable,	see	

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	ineffectiveness	or	that	any	

ineffectiveness	 resulted in	prejudice.	 	 See	 Laferriere,	 1997	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,	2017	ME	2,	¶	15,	153 A.3d	106.
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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	Court	docket	number	CR-2013-198

FOR	CLERK	REFERENCE	ONLY