MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 4 ME 7 Docket: Ken

- 22

- 315 Argued : July	6,	2023 Decided: January	25,	2024 Panel: STANFILL ,	C.J.,	and MEAD, JABAR , HORTON , CONNORS , LAWRENCE, and DOUGLAS , JJ. Majority: STANFILL,	C.J.	and	MEAD, HORTON, CONNORS,	LAWRENCE,	and	DOUGLAS,	JJ. Dissent: JABAR,	J.
MARIO	GORDON

v. STATE	OF	MAINE

HORTON ,	J

. [ ¶1] Mario	 Gordon	 appea l s	 from	 a	 trial	 court	 judgment	 (Kennebec County, Benson,	 J. )	 denying	 his	 petition	 for	 post

- conviction	 review	 alleging ineffective	 assistance	 of	 counsel. In	 the	 underlying	 criminal	 case,	 Gordon pleaded	 guilty	 to	 multiple	 charges	 pursuant	 to	 a	 plea	 agreement	 with	 a sentencing	cap,	in	reliance	on	his	attorney’s	inaccurate	prediction	that	Gordon would likely receive	a sentence substantially	more	lenient	 than	 the	sentence the	court	ultimately	imposed.		After	an	evidentiary	hearing,	the	post

- conviction
court	conc luded	that	Gordon	had	failed	to	meet	his	burden	of	persuasion.		We affirm	the	judgment.2 I.		BACKGROUND [¶ 2 ] The	following	facts	and	procedure	are	drawn	from	the	procedural record,	 the	post

- conviction	court’s	supported	 findings , and our 2021	opinion affirming	Mario	Gordon’s	sentence, see State	v.	Gordon ,	2021	ME	9,	246 A.3d
170 .	 	 In	 July	 2018,	 Gordon	was	 charged	 by	indictment	with	 seven	 counts	 of aggravated	trafficking	of	scheduled	drugs	(Class	A), 17

- A	M.R.S.	§ 1105

- A(1)(D) (2017) , id. §	1105

- A(1)(B)(1),	(H)	(2023) ; four	counts	of	violat ing a condition of	release	(Class	E), 15	M.R.S.	§	1092(1)(A)	(2023) ;	and	one	count	of	criminal forfeiture, 15	M.R.S.	§	5826	(201 7 )

. 1 Gordon ,	2021	ME	9,	¶	3,	246	A.3d	170. [¶ 3 ]		While	the	case	was	pending,	the	State	proposed	a	plea	agreement in which Gordon would plead	 guilty	 to	 several	 of	 the	 charges and	 receive	 a sentence	of	eight	years	“straight,”	i.e. , with	none	of	the	period	of	incarceration suspended.	 	Gordon	 consistently	 rejected	 the	 proposal	 because	 he	 favored	a split	sentence,	i.e.,	a	sentence	that	included	a	suspended	period	of	incarceration

1 When	Gordon	was	arrested	on	these	charges,	he	was	on	bail	in	another	case	in	which	he	had been	charged,	in	201 6 , and	indicted,	in	2017, with	three	counts	of	aggravated	trafficking	of	scheduled drugs	 (Class	 A), 17

- A M.R.S.	 §	 1105

- A(1)(B)(1)	 (2023) ,	 and	 two	 counts	 of	 criminal	 forfeiture, 15 M.R.S.	§	5826	(201 6 )

. State	v.	Gordon ,	2021	ME	9,	¶¶	2

- 3,	246	A.3d	170. Title	17

- A	M.R.S.	§	1105

- A(1)(D)	and	15	M.R.S.	§	5826	have	been	amended	since	the	occurrence of	the	conduct	giving	rise	to	the	charges;	the	amendments	are	not	relevant	to	the	issues	presented	in this	 appeal. See P.L.	 2021,	 ch.	 396,	 §	 4	 (effective	 Oct.	 18,	 2021)	 (codified	 at 17

- A	 M.R.S. § 1105

- A(1)(D) ); P.L.	 20 19 ,	 ch.	 97,	 §§	 4

- 6	 (effective	 Sept.	 19,	 2019)	 (codified	 at	 15	 M.R.S. § 5826(1)

- (2),	(6)	(2023)); P.L.	2021,	ch.	454,	§	13	(effective	Oct.	18,	2021)	(codified	at 15	M.R.S. § 5826(9)	(2023) ).3 and	 probation.	 	 At	 an	 unrecorded	 dispositional	 conference	 convened	 by	 the trial	court	in	August	2019,	the	State	reiterated	its	proposal.		Gordon’s	attorney

counter ed	with	a propos al	for a	sentence	of	ten	years’	incarceration	with	all	but six	years	suspended	and	four	years	of	probation. 2 The	State	did	not	agree	to Gordon’s	 counter

- proposal.	 	 The	 court	 told	 the	 prosecutor	 and	 Gordon’s attorney	that	both	proposals	were	“in	the	realm	of	reasonableness”	and	asked the	 State	 to	 propose	 an	 agreement	 with	 a	 cap	 or	 limit	 on	 the	 maximum sentence,	which	would	allow	Gordon	to	argue	for	less	pri son	time	and	a	split sentence.	 	 The	 State	 indicated	 that,	 if	 Gordon	 did	 not	 accept	 its eight

- years - straight	proposal,	it	would	agree	 to	recommend	a	sentence	of	no more	than	twelve	years	straight,	with	Gordon	free	to	argue	for	less	prison	time and	for	prob ation. It is	undisputed	that	t he	court	did	not	express	any	opinion on	the	reasonableness	of	the	State’s	sentencing

- cap	proposal. [¶ 4 ]		Based	on	the	court’s	statement	that	both	parties’	initial	proposals were	reasonable,	Gordon’s	attorney	advised	him	that,	if	Gordon	elected	to	agree to	a	twelve

- year	cap,	the	sentence	would	likely	be	eight	years	straight	or	ten years	with	some	portion	su spended,	or	something	between	those,	but	he	did not	give	Gordon	any	guarantee	that	the	sentence	would	be	less	than	the	cap	of

2 Gordon’s	trial	counsel	testified at	the post
- conviction	review	( PCR ) hearing that	the	prosecutor had	made	clear	that	the	State	would	not	agree	to	any	split	sentence

.4 twelve	years	straight. 3 He	also	advised Gordon that	the	twelve

- year - cap	option offered Gordon’s only	 hope	 of	 receiving	 a	 split	 sentence	 because	 the	 State would	not	agree	to	a	split	sentence. [¶ 5 ] Gordon’s	attorney	testified	that	a fter he	and	Gordon had	conferred, Gordon	and	the	State	agreed	that	if	Gordon	pleaded	guilty	that	day,	sentencing would	be	by	 the	same	judge	but	would	be	deferred	 to	provide	Gordon	some time	 to	 decide	 between	 the	 State’s	 two	 proposals.	 	 Later	 that	 day,	 Gordon pleaded	guilty to	three	of	the	counts	of	aggravated	trafficking	and	two	of	the counts	 of violating condition s of	 release	 and admitted	 the	 count	 of	 criminal forfeiture. 4 During	 the	 plea	 colloquy, see M.R.U.	 Crim.	 P.	 11(b)

- (e),	 Gordon acknowledged	that	he	understood	that	he	could	be	sentenced	to	up	to	twelve years	 in	 prison	 under	 the	 terms	 of	 the	 plea	 agreement	 if	 he	 chose	 the twelve

- year - cap	 option	 instead	 of	 the	 eight

- years - straight	 option.	 	 He	 also confirmed that,	 apart	 from	 the	 eight

- years - straight	 and	 twelve

- year - cap

3 Gordon’s	 attorney testified	 that , given the	 court’s	 statement	 that	 both	 proposals	 were reasonable,	he	believed	that	Gordon	“would	be	no	worse	off	by	going	in	front	of	the	judge	with	the cap	 than	 if	 he	 was	 to	 work	 something	 out	 by	 agreement	 with	 the	 State” and	 advised	 Gordon accordingly.

4 The	State	dismissed	the	remaining	charges.		During	the	same	hearing,	with	respect	to	the	charges alleged	in	 the other indictment,	Gordon	pleaded	guilty	 to	one	count	of	aggravated	 trafficking	and admitted	the	two	counts	of	criminal	forfeiture,	and	the	State	dismissed	the	remaining	charges.5 options	that	were	placed	on	record,	no	one	had	made	any	promises	about	what would	happen	if	he	pleaded	guilty

. [¶ 6 ] The	court	held	a	sentencing	hearing	in	December	2019,	about	four months	 after	 the	 dispositional	 conference	 and	 plea.	 	 At	 some	 point	 before sentencing,	 Gordon	 chose	 to	 accept	 the	 State’s	 twelve

- year - cap	 proposal. 5
See Gordon ,	 2021	ME	 9,	¶	 7,	 246	A.3d	 170.	 	Gordon	and	 the	State submitted sentencing	memoranda	in	which the	State	argued	for	a	sentence	of	twelve	years straight	and	Gordon	argued	for	a	sentence	of	ten	years	with	all	but	four	years suspended	and	four	years	of	probation. The	memoranda	did	not	allude	to	the discussion during	 the	 dispositional	 conference	 months	 before ,	 nor	 did	 the State,	Gordon , or	 the	court	allude	 to	 those	discussions	during	 the	sentencing hearing .	 	 After	 the	 parties	 presented	 their	 arguments ,	 the	 court	imposed	its
sentence.	 	 In	its Hewey analysis, see State	v.	Hewey ,	 622	A.2d	 1151,	 1154

- 55 (Me. 1993) ; 17

- A M.R.S.	§	1252

- C	(201 8 ) , 6 the	court	(1)	set	 the	basic	 term	of imprisonment	 at	 twelve	 years,	 (2)	 weighed	 the	 aggravating	 and	 mitigating circumstances	and	left	 the	maximum	 term	 of	imprisonment	at	 twelve	 years,

5 The	 post

- conviction	 court	 did	 not	make	 a	 finding	 as	 to	when	 or	 how	 Gordon	 expressed	 his decision	 to	 proceed	 with	 the	 twelve

- year - cap	 option.	 	 The post
- conviction	 record	 contains	 an affidavit	 signed	 by	 the	 prosecutor	 stating	 that	 Gordon’s	 attorney	 informed	 the	 prosecutor	 of	 the decision	by	text	message	on	September	11,	2019.

6 Title	17

- A	M.R.S.	§	1252

- C	has	since	been	repealed	and	replaced. See P.L.	2019,	ch.	113 ,	§§	A

- 1, A

- 2	(effective	May	16,	2019)	(codified	at 17

- A	M.R.S.	§	1602	(202 3 ) ).6 and	(3)	determined	that	no	portion	of	that	term	would	be	suspended.		The	court imposed	 concurrent	 sentences	 of	 twelve	 years	 straight	 (and	 mandatory minimum,	noncumulative	fines)	on	the	aggravated	trafficking	charges.		Neither Gordon	 nor	 his	attorney	 voiced any surprise	 or objection in	 response to	 the sentence	during	the	hearing.		Gordon’s	attorney	did	not move	to	allow	Gordon to	withdraw	his	plea,	because as	he	testified	at	the	post

- conviction	hearing, he did	not believe that there	was	a legal	basis for	the motion

. [¶ 7 ] Gordon sought	leave	to	appeal	from	his	sentence,	and	the	Sentence Review	Panel	granted	his	request. 7 Gordon ,	2021	ME	9,	¶	11,	246	A.3d	170. In a	 February	 2021	 opinion,	 we	 affirmed	 the	 sentence,	 concluding	 that	 (1) the court’s	sentencing	process	did	not	result	in	a	due	process	violation	because	the sentence	fell	within	the	range	contemplated	by	the	plea	agreement	and	(2)	the court	 had	 not	 misapplied	 the	 sentencing	 statutes	 or	 disregarded	 relevant factors	in	imposing the	sentence. 8 Gordon ,	2021	ME	9,	¶¶	12

- 21,	246	A.3d	170.

7 Gordon	 also	 filed	 a	 motion	 to	 correct	 or	 reduce	 the	 sentence,	 arguing	 that	 the	 court	 had overlooked	its	statements	 that	 the	more	lenient	plea	proposals	 that	had	been	discussed

— but	not accepted

— were	 within	 the	 realm	 of	 reasonableness. Gordon ,	 2021	 ME	 9,	 ¶	 9,	 246	 A.3d	 170; see M.R.U.	Crim.	P.	35.		The	trial	court	denied	Gordon’s	Rule	35	motion,	finding	that	the	sentence	was not	influenced	by	a	mistake	of	 fact. See M.R.U.	Crim.	P.	35(c)(2).		Gordon	did	not	appeal	 from	the denial	of	his	Rule	35	motion	or	from	the	judgment	of	conviction. See	Gordon ,	2021	ME	9,	¶¶ 13,	15 n.8,	246	A.3d	170.

8 We	also	indicated	that,	because	Gordon	had	not	filed	a n appeal	from	the	judgment	of	conviction or	 from	 the	denial	of	his	Rule 35	motion,	he	could	challenge	only	 the	 “propriety”	of	 the	sentence

.7 Our	focus	was	on	whether	the	sentencing	court “ abused	its	sentencing	power or	acted	unjustly	in	the	sentencing	process,	in	violation	of	due	process.” Gordon , 2021	ME	9,	¶	13,	246	A.3d	170. Although	Gordon	attempted	 to	 raise	issues regarding his reliance	 on the	 court’s	 comments	 during	 the	 dispositional conference,	we	said	that	“any	statements	made	at	the	dispositional	conference”

were	 not “ properly	 before	 us ” because	 the	 statements	 made	 during	 the unrecorded	 dispositional	 conference	 were	 not	 part	 of	 the	 tr ial	 court	 record. Gordon ,	2021	ME 9,	¶¶	12

- 13,	15	n.8,	246	A.3d	170.		We	indicated	that	Gordon’s argument	based	on	the	dispositional	conference	was	“collateral”	and	could	only be	pursued	in	a	post

- conviction	review	proceeding

. I d. ¶	15	n.9; see State	v. Adams ,	2018	ME	60,	¶	11,	184	A.3d	875

. [¶ 8 ] Gordon	timely	filed	a	petition	for	post

- conviction	review	(and,	later, an	amended	petition),	arguing	that	he	had	been	denied	the	right	to	the	effective assistance	 of	 counsel.	 	 In	 keeping	 with longstanding practice,	 the post
- conviction	claim	was	assigned	to	the	judge	who	presided at	Gordon’s	plea

Gordon ,	2021	ME	9,	¶¶	13	&	n.7,	15	n.8,	246	A.3d	170.		We	have	since	clarified	that	nothing	prohibits us	from	addressing	arguments	concerning	the	legality	of	a	sentence	in	the	context	of	a	discretionary sentence	appeal,	even	if	the	appellant	could	have raised (but	did	not raise )	those	arguments	in	a n appeal from	the	conviction

. State	v.	Murray

- Burns ,	2023	ME	21,	¶¶	12

- 17,	290	A.3d	542

.8 and	sentencing

. 9 The	post

- conviction	court	held	an	evidentiary	hearing	during which	it	heard	testimony	from	Gordon’s	trial	attorney	and	from	Gordon.		The court	admitted	several	exhibits,	including	affidavits by	Gordon,	Gordon’s	trial attorney,	 and	 the	 prosecutor	 who	 represented	 the	 State describing	 the dispositional	conference,	pleas,	and	sentencing.		Gordon	acknowledged	during his	 testimony	 that	 his	 trial	 attorney	 “didn’t	 guarantee”	 that	 Gordon	 would receive	a	sentence	of	less	than	twelve	years	and	agreed	that	his	attorney	said only	 that “that’s	 what	 he

— he	 thought	 would	 happen.”	 	 He	 testified	 that, although	he	knew	that	a	twelve

- year	sentence	was	a	possibility,	he	chose	the twelve

- year - cap	option	because	he	and	his	attorney	believed that the	sentence would	probably	be	lower	than	twelve	years	even	if	it	was	a	straight	sentence, and	he	wanted	to	be	able	to	argue	for	a	split	sentence. [¶ 9 ] In	a	written	order	dated	August	31,	2022,	the	court	denied	Gordon’s petition	for	post

- conviction	relief.		The	court	stated	that	although	trial	counsel’s “erroneous	predictions	and	mistaken	beliefs	[were]	regrettable,	the	evidence [did]	not	support	a	findin g	of	ineffective	assistance	of	counsel.”		Specifically,	the court	found,	inter	alia,	that	trial	counsel’s	advice	to	Gordon	to	proceed	with	the

9 The practice	of	assigning	post

- conviction	proceedings	to	the	same	jurist	who	presided	over	the trial	or	plea	proceeding	at	issue	on	post

- conviction	review	rests	on	the	principle	that	the	presiding judge	or	justice	is	in	a	better	position	to	evaluate	the	merit s of	the	post

- conviction	claim. See M.R.U. Crim.	P.	69A(b)(1).9 twelve

- year - cap	 option	 “represented	 a	 strategic	 decision	 to	 achieve	 some probation	 like	 [Gordon]	 wanted,”	 given	 that	 the	 State	 would	 not	 agree	 to recommend	a	split	sentence;	that	there	was	no	evidence	that	Gordon	did	not understand	that	he	could	receive	up to	a	twelve

- year	sentence;	and	that	there was	 no	 basis	 for	 Gordon’s	 counsel	 to	 object	 to	 the	 sentence	 when	 it	 was imposed	because	Gordon	understood	 the	plea	agreement	and	entered	into	it voluntarily	 and	 the	 sentence	 was	 consistent	 with	 the	 agreement.	 	 The court determined	 that	 Gordon	 had	 not	 demonstrated	 that	 his	 counsel’s representation	fell	below	an	objective	standard	of	reasonableness. [¶1 0 ]		Gordon	sought	a	certificate	of	probable	cause	 to	appeal. See 15 M.R.S.	 § 2131(1)	 (2023) ;	 M.R.	 App.	 P.	 2B (b)(1) ,	 19(a)(2)(F).	 	 We	 granted Gordon’s	application	in	part,	issuing	a	certificate	of	probable	cause	to	appeal	on the	 issues	 of	 whether	 Gordon	 was	 deprived	 of	 his	 right	 to	 the	 effective assistance	of	counsel because	of (1)	counsel’s	advice	to	proceed	with	the	plea agreement	under	which	Gordon	could	be	sentenced	to	up	to	twelve	years	and (2)	counsel’s	failure	to	object	at	sentencing	to	the	twelve

- year	sentence	that	the court	imposed.		We	declined	to	permit	Gordon	to	appe al	on	two	other	alleged instances	 of	 ineffective	 assistance	 that	 he	 asserted	 in	 his	 application:	 that10 counsel	failed	to	advocate	for	a	lower	cap	during	the	dispositional	conference and	that	counsel	failed	to	appeal	from	the	denial	of	his	Rule	35	motion.
II.		DISCUSSION
A. Elements	and	Standard	of	Review	for	a	Post
- Conviction	Petition Based	on	Ineffective	Assistance	of	Counsel [¶1 1 ] The	 United	 States	 and Maine	 Constitutions	 guarantee	 that	 “ a criminal	defendant	is	entitled	to	receive	the	effective	assistance	of	an	attorney .”
McG owan v.	State ,	2006	ME	16,	¶	9,	894 A.2d	493 ; see U.S.	Const.	amend.	VI ; Me. Const.	art.	I,	§	6 .		“To	prevail	on	a	claim	of	ineffective	assistance	of	counsel, a	petitioner	must	demonstrate	(1)	‘that	counsel’s	representation	fell	below	an objective	 standard	 of	 reasonableness’	 and	 (2)	 that	 the	 ‘errors	 of	 counsel actually	had	an	adverse	effect	on	the	d efense.’” Ford	v.	State ,	2019	ME	4 7,	¶ 11, 205	A.3d	896 (alteration	omitted ) (quoting Strickland	v.	Washington ,	466	U.S. 668,	6 88 ,	693 (1984) )

. [¶1 2 ]		With	respect	to	the	performance	prong,	“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	v.
State ,	2017	ME	162,	¶	7,	167	A.3d	1266 (quotation	marks	omitted). We ha ve stated	 that	 “strategic	 and	 tactical	 decisions	 by	 defense	 counsel	 must	 be manifestly	unreasonable	to	result	in	a	new	trial	based	on	ineffective	assistance11 of	 counsel,” Pineo	 v.	 State ,	 2006	 ME 119,	 ¶	 13,	 908	 A.2d	 632 .	 	 However,	 “a determination	that	defense	counsel’s	choices	amount	to	‘trial	strategy’	does	not automatically	insulate	them	from	review,” Watson	v.	State ,	2020	ME	51,	¶	20, 230	A.3d	6 (quotation	marks	omitted).		In	the	context	of	a	conviction	based	on a	 guilty	 plea,	 the	 purpose	 of	 the	 constitutional	 requirement	 of	 effective assistance	of	counsel	is	to	ensure	that when	giving	advice,	counsel	acts “within the	realm	of	an	ordinary	competent	attorney	because	the	voluntariness	of	the plea	hinges	upon	whether	the	advice	is	that	of	an	ordinary	competent	attorney.” Aldus	 v.	 State ,	 2000	 ME	 47,	 ¶	 15,	 748	 A.2d	 463 ; see McMann	 v.	 Richardson , 3 97 U.S.	 759,	 77 0

- 7 1	 (1970) (holding	 that	 the	issue	is	 not	 “whether	 a	 court would	retrospectively	consider	counsel’s	advice	to	be	right	or	wrong,	but

.	.	. whether	 that	 advice	 was	 within	 the	 range	 of	 competence	 demanded	 of attorneys	in	criminal	cases”). [¶1 3 ] To	 establish	 actual	 prejudice,	 i.e.,	 that	 counsel’s	 errors	 had	 an adverse	effect	on	the	defense,	a	petitioner	must demonstrate	that,	but	for	his trial	attorney’s	deficient	performance,	 “there	is	a	reasonable	probability	 that ‘the	result	of	the	proceeding	would	have	been	different.’” 10 Ford ,	2019	ME	47,

10 “An	error	by	counsel,	even	if	professionally	unreasonable,	does	not	warrant	setting	aside	the judgment	 of	 a	 criminal	 proceeding	 if	 the	 error	 had	 no	 effect	 on	 the	 judgment.” Strickland	 v. Washington ,	466	U.S.	688,	691	(1984).12 ¶	 20,	 205	 A.3d	 896	 (quoting Strickland ,	 466	 U.S.	 at	 694).	 	 “A	 reasonable probability	is	a	probability	sufficient	to	undermine	confidence	in	the	outcome.” Strickland ,	466	U.S.	at	694.		In	the	context	of	a	guilty	plea,	the	petitioner	must “show	that	the	alleged	error	by	counsel	impugns	the	validity	of	the	conviction.” Laferriere	v.	State ,	1997	ME	169,	¶	8,	697	A.2d	1301 .		“The	longstanding	test	for determining	 the	 validity	 of	 a	 guilty	 plea	 is	 whether	 the	 plea	 represents	 a voluntary	and	intelligent	choice	among	the	alternative	courses	of	action	open to	the	defendant.” Id. (quotation	marks	omitted).		“At	the	core	of	the	prejudice analysis”	is	whether	the	plea	proceeding	“produced	a	just	result,”	which	is	“the knowing	 and	 voluntary	 entry	 of	 a	 guilty	 plea	 by	 a	 guilty	 party.” Id. ¶	 12 (quotation	marks	omitted).		“Unlike	at	a	trial,	the	defendant	who	enters	a	plea of	 guilty	 in	 a	 Rule	 11	 proceeding	 is	 cooperating	 in	 the	 creation	 of	 a	 record intended	to	instill	confidence	that	the	outcome	is	a	reliable	reflection	of	guilt. These	 characteristics	 of	 that	 proceeding	 make	 it	 particularly	 difficult	 to demonstrate	prejudice	from	the	errors	of	counsel	.	.	.	.” Id. [¶1 4 ] We “ review	a	post

- conviction	court’s	legal	conclusions	de	novo	and its	 factual	 findings	 for	 clear	 error.” Fortune	 v.	 State ,	 2017	 ME	 61,	 ¶ 12, 158 A.3d 512 .	 	 “Both	 prongs	 of	 the Strickland analysis	 often	 present	 mixed questions	 of	 law	 and	 fact,”	 and we “ appl y the	most	 appropriate	 standard	 of13 review	 for	 the	 issue	 raised	 depending	 on	 the	 extent	 to	 which	 that	 issue	 is dominated	by	fact	or	by	law.” Hodgdon	v.	State ,	2021	ME	22,	¶	13,	249 A.3d	132 (quotation	marks	omitted). 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.
Id. (quotation	marks	omitted).
B. Gordon’s	 Attorney’s	 Advice	 and	 Recommendation	 Regarding	 the Twelve
- Year	Cap	Agreement [¶1 5 ] Gordon	 contends	 that	 his	 trial	 attorney	 provided	 ineffective assistance	by	advising	him	 to	accept	 the	 twelve

- year - cap	offer	instead	of	 the eight

- years - straight	offer.		His	brief	asserts	that	his	attorney	all	but	guaranteed him	that	his	maximum	sentence	wo uld	have	been	ten	years	or	less,	that	counsel failed to convey adequately the	 significant	 risk	 associated	 with	 the twelve

- year - cap	 option,	 and	 that	 otherwise	 he	 would	 not	 have	 chosen	 to proceed	with	 the	 cap option .	 	 The	 State	 contends	in	 response	 that	 Gord on’s attorney	acted	reasonably	in	recommending	that	he	accept	the	twelve

- year - cap offer	 while	 informing	 him	 that	 a	 twelve

- year	 sentence	 was	 possible	 but unlikely.	 	The	State	 points	 to	 the	 court’s	 statements	 during	 the	 dispositional conference , Gordon’s	consistent	rejection	of	the	eight

- years - straight	option	in14 favor	of	a	sentence	that	included	probation , and	Gordon’s	high	exposure	to	a much	harsher	sentence	were	he	to	proceed	to	a	trial.		The	State	also	argues	that , based	on	Gordon’s	responses	to	the	court’s	questions	during	the	Rule	11	plea inquiry, the	court	did	not	err	in	finding	that	Gordon	understood	the	risk	that	he could	 receive	 a	 sentence	 at	 the	 cap , thus making	 it	 difficult	 for	 Gordon	 to demonstrate	a	lack	of	confidence	in	the	justness	of	the	outcome. [¶1 6 ] Gordon’s case presented challenging circumstances for his trial attorney. The State’s case was strong. Gordon’s exposure to a sentence of more than twelve years, were he to go to trial, was high

— he was charged with multiple Class A crimes, the most serious charges arising while he was on bail for other drug trafficking charges, and he had a significant trafficking

- related criminal history. The court had indicated during the dispositional conference that the parties’ initial proposals

— for an eight

- year unsuspended sentence and

a ten
- year sentence with a suspended portion

— were reasonable. Gordon had consistently rejected the State’s straight

- sentence offer because he wanted to obtain a sentence that included probation

. Other than an open plea, which would have exposed Gordon to a sentence of up to thirty years, the only way for Gordon to achieve his goal of probation was to choose the cap agreement that15 limited his risk to a twelve

- year straight sentence while preserving his opportunity to argue for a split sentence. [¶1 7 ] Gordon’s	attorney	clearly	evaluated	the	risks	and	benefits	of	each of	Gordon’s	options	and	drew	on	his	professional	experience	and	judgment	in advising	 Gordon	 that	 (1)	 he	 should	 not	 go	 to	 trial,	 (2)	 the	 benefit	 of	 the twelve

- year - cap	option	was	worth	purs uing	despite	its	risk	because	there	was a	reasonable	chance	 that	 the	court	would	suspend	a	portion	of	 the	sentence, and	(3)	a	twelve

- year	straight	sentence	was	possible,	but	unlikely. The	advice that	Gordon	should	proceed	with	 the	 twelve

- year - cap	option	w as	a	strategic decision	 that	 was	 not	 “manifestly	 unreasonable,” Pineo ,	 2006	ME 119,	 ¶	 13,
908 A.2d	 632,	 and	 it	 did	 not “ fall [] below	 what	 might	 be	 expected	 from	 an ordinary	 fallible	 attorney,” Philbrook ,	 2017	 ME	 162,	 ¶	 7,	 167	 A.3d	 1266 (quotation	marks	omitted). [¶1 8 ] Th at the	 court	 ultimately	 imposed	 a	 twelve

- year	 unsuspended sentence	 (after	 reading	 the	 parties’	 “exhaustive”	 sentencing	 memoranda, listening	 to	 their	 arguments,	 and	 conducting	 a	 detailed Hewey analysis that involved the	weighing	of	significant	aggravating	and	mitigating	 factors)	does16 not	render	Gordon’s attorney ’s	advice	deficient. 11 Se e Manley	v.	State ,	2015	ME 117,	 ¶	 16,	 123	 A.3d	 219 (explaining	 that	 “trial	 counsel’s	 strategic	 decisions, even	if	 they	 prove	 to	 be	 wrong	in	 hindsight,	 .	 .	 .	 do	 not	 necessarily	indicate ineffectiveness”	(alteration	omitted)). [¶1 9 ] Specifically, that	 Gordon’s	 attorney’s	 prediction	 of	 the	 likely sentence	proved	incorrect does	not	establish	ineffective	assistance	of	counsel or	enable	Gordon	to	withdraw	his	guilty	plea. “ An	erroneous	sentence estimate by	defense	counsel	does	not	render	a	plea	involuntary.” United	States ex	rel.
Scott v.	Mancusi ,	 429	 F.2d	 104,	 108	 (2d Cir.	 1970) ( alteration	 and quotation marks	omitted). 12 “The	fact	that	the	defendant	may	have	had	expectations	that

11 The	attorney’s	advice	relied	heavily	on	 the	court’s	view	 that	 the	State’s	eight

- years - straight proposal	 and	 Gordon’s	 counter	 proposal	 were	 both	 reasonable.	 	 This	 was	 not	 an	 irrational interpretation	of	the	court’s	comments,	although	it	overlooked	the	fac t	that	the	court	had	not	been asked	 whether	 the	 State’s	 cap	 proposal	 was	 also	 reasonable.	 	 An	 indication	 by	 a	 judge	 at	 a dispositional	conference	that	the	parties’	settlement	proposals	are	“reasonable”	means	only	that	the proposals	 fall	 within	 a	 range	 of	 s entences	 that	 might	 be	 accepted	 by	 the	 court	 as	 a	 negotiated settlement.		 It	does	not	telegraph	what	sentence	a	judge	would	actually	impose	in	the	event	of	an open	plea	or	capped

- sentence	agreement,	nor	did	Gordon’s	attorney	testify	that	he	believed	the	court had	made	a	commitment	to	impose	a	particular	sentence.		Moreover,	absent	the	court’s	commitment to	accept	a	plea	agreement	for	a	specific	sentence,	both	the	State	and	the	defe ndant	are	at	risk	that the	sentence	may	 vary	 from their expectations.		The	court	at	a	dispositional	conference	may	lack access	 to	 information	 and	 arguments	 that	 would	 be	 presented	 at	 an	 actual	 sentencing:	 the defendant’s	 allocution,	 the	 victim	 impact	 statement,	 the	 sentencing	 memoranda,	 and	 other information	ab out	aggravating	and	mitigating	factors.		Unless	the	court	commits	itself	to	a	particular sentence,	 the	 court	 is	 free	 to	 impose	 any	 lawful	 sentence	 within	 the	 scope	 of	 the	 parties’	 plea agreement.

12 The	circumstances	in Mancusi are	similar	to	those	presented	here. United	States ex	rel.	Scott v. Mancusi ,	429 F.2d	104,	105

- 07	(2d	Cir.	1970).		Trial	counsel	testified	that	he	had	told	the	petitioner that	he	“felt	sure”	that	the	petitioner	would	be	ordered	to	serve	his	sentence	in	another	jurisdiction if	he	pleaded	guilty,	based	on	information	from	parole	of ficers	in	the	other	jurisdiction	and	the	court’s17 his	plea	would	result	in	leniency	is	not	sufficient,	in	the	absence	of	evidence	that the	expectation	was	induced	by	 the	government,	 to	justify	withdrawal	of	 the plea.” Id. ( alteration	and quotation	marks	omitted); see	also United States ex	rel. Bullock v.	Warden,	Westfield	State	 Farm	for	Women ,	408	 F.2d	1326,	1330

- 31 (2d Cir.	1969) ; United	States ex	rel.	Curtis v.	Zelker ,	466	F.2d	1092,	1098	(2d	Cir. 1972) (“Although	a	claim	frequently	asserted	is	that	the	guilty	plea	was	entered by	the	prisoner	in	the	err oneous	belief,	induced	by	discussions	with	his	lawyer, that	he	would	receive	a	lesser	sentence	than	that	ultimately	imposed	or	that	he would	be	permitted	to	withdraw	his	guilty	plea,	this	has	repeatedly	been	held insufficient	to	warrant	[post

- conviction	re lief].”).		Moreover,	counsel’s	advice	in this	case	did	not	include	the	objectively	incorrect	information	that	was	present in	the	cases	on	which	Gordon	relies

. See United States ex	rel.	Hill v.	Ternullo ,	510 F.2d	844,	847	 (2d	Cir.	1975) (discussing	 the	cri tical	difference,	in	examining whether	trial	counsel’s	plea	advice	is	deficient,	between	“a	prediction	which	has proven	 inaccurate”	 and	 “a	 misstatement	 of	 easily	 accessible	 fact,”	 such	 as	 a statutory	minimum	or	maximum	sentence).		Gordon’s	attorney	did	not give	the

indication	 that	it	would	 consider	 that	 outcome. Id. at	 106 ,	 108 .	 	The	 sentencing	 court	 ultimately ordered	 otherwise. Id. at	 107.	 	 The	 Second	 Circuit	 concluded	 that	 it	 was	 clear	 error	 for	 the post
- conviction	 court	 to	 find	 that	 counsel	 made	 misrepresentations	 to	 the	 petitioner;	 rather, counsel’s	representations	“were	couched	in	the	language	of	hope	rather	than	of	promise	and	were merely	estimates	made	in	good	faith	as	to	what	[counsel]	thought	would” occur. Id. at 105, 108 ,	110

. In	addition,	the	petitioner	had,	during	the	plea	colloquy,	unambiguously confirmed his	understanding that	he	might	not	be	ordered	to	serve	his	sentence	in	the	other	jurisdiction. Id. at	106

- 08.18 kind	of	objectively	wrong	plea	advice

— wrong	when	given,	not	wrong	only	in hindsight

— that	 courts	 have	 deemed	 sufficient	 to	 warrant	 post

- conviction relief. See e.g. , Lafler	v.	Cooper ,	566	U.S.	156 ,	161 (2012) (defendant rejected plea agreement	 on	 advice	 of	 counsel ,	 and	was	 then	 convicted	 after	 trial	 and received	 a	 more	 severe	 sentence,	 after	 counsel	 incorrectly	 advised	 that defendant	could	not	be	convicted	of	the	most	serious	charge); Missouri	v.	Frye , 566	U.S.	134 ,	138

- 39 (2012) (trial	counsel	 failed	 to	inform	defendant	of	plea offer s ,	 which	 expired); Magana	 v.	 Hofbauer ,	 263	 F.3d	 542 ,	 544

- 45 (6th Cir. 2001) (trial	 counsel	 misinformed	 defendant	 about	 maximum sentencing	exposure); Julian	v.	Bartley ,	495	F.3d	487,	495	(7th	Cir.	2007) (tri al counsel	 gave	 defendant	 “clearly	 wrong”	 information	 about	 maximum sentencing	exposure). [¶ 20 ] With	 respect	 to	 the	 prejudice	 prong,	 even	 if	 we	 considered counsel’s	advice	to	be	constitutionally	deficient,	it	would	be	difficult	to	conclude that	Gordon	has	demonstrated	that	his	plea	was	involuntary	given	his	express acknowledgment	during	the	Rule	11 colloquy	that	he	understood	that	he	could be	sentenced	to	up	to	twelve	years	and	that	no	one	had	made	any	promises	to him	 about	 the	 sentence	 other	 than	 the	 State’s	 promise	 to	 recommend	 a19 sentence	of	not	more	than	twelve	years. 13 See	Laferriere ,	1997	ME	169,	¶¶	8, 12,	 697 A.2d	 1301. A	 primary	 purpose of	 the	 detailed	Rule	 11	inquiry	is	 to ascertain	whether	the	defendant	understands	and	accepts	the	consequences	of the	plea	and	whether	the	defendant	has	been	promised	or	is	relying	on	anything beyond	 the	 terms	 of	 the	 plea	 agreement	 placed	 on	 record.	 	 A	 def endant’s undisclosed	expectation	about	the	potential	sentence	cannot override what	the defendant	says	on	the	record	in	response	to	the	court’s	questions during	a	plea inquiry

. [¶ 2 1] In	addition,	as	 the	State	argues,	 the	post

- conviction	court	 found that	Gordon	would	not	have	accepted	the	eight

- years - straight	offer	even	if	his attorney	 had	 not	 advised	 him	 that	 a	 twelve

- year	 sentence	 was	 unlikely	 if Gordon	chose	 the	cap	agreement.		That finding	is	supported	by	 the	evidence that	Gordon	had	rejected	that	same	offer	from	the	start,	that	Gordon	wanted	to obtain	a	sentence	that	included	probation,	and	that	even	after	the	sentence	was imposed , Gordon	asked	trial	counsel	to	request	a	sev en - year	sentence.

13 Gordon	does	not	argue	that	prejudice	should	be	presumed	based	on	a	constructive	complete denial	of	counsel	under United	States	v.	Cronic ,	466	U.S.	648,	65 3

- 62	(1984)

. See United	States	v.	Smith , 640	F.3d	580,	587	n.3	 (4th	Cir.	2011) (explaining	 that	 the	general	presumption	 that	a	guilty	plea accepted	after	a	Rule	11	colloquy	is	conclusive	“does	not	obtain	when	voluntariness	is	attacked	based on	the	constructive	denial	of	counsel”).20 [¶ 22 ] We	agree	with	the	post

- conviction	court	that	Gordon’s	claim	that his	attorney’s	advice	constituted	ineffective	assistance	of	counsel	fails	to	satisfy either	prong	of	the Strickland standard

. C. Gordon’s	Attorney’s	Failure	to	Object	to	the	Twelve
- Year	Sentence [¶ 23 ] We	 granted	 a	 certificate	 of	 probable	 cause	 on	 the	 additional question	of	whether	Gordon	was	deprived	of	his	right	to	the	effective	assistance of	counsel given his	attorney’s failure	to	object	at	the	time	of	sentencing	to	the twelve

- year	sentence	that	the	court	imposed. [¶ 24 ] It	 is	 telling that	 neither	 Gordon	 nor	 his	 attorney	 voiced	 any objection	or	even	surprise	in	response	to	the	sentence	when	the	court	imposed
it

. It	can	reasonably	be	inferred	that	neither	objected	because	both	understood, as	Gordon	had	confirmed	at	the	time	of	his	plea	and	again	acknowledged	in	his testimony	at	the	post

- conviction	hearing,	that	he	was	at	risk	of	that	sentence under	the	cap	agreemen t	with	the	State. [¶ 25 ] Gordon	appears	to	maintain	that,	had	his	attorney	objected	to	the sentence	when	it	was	imposed,	he	would	have	been	able	to	withdraw	his	plea. However,	Maine	Rule	of	Unified	Criminal	Procedure	32(d)	provides	 that	 “[a] motion	to	withdraw	a	plea	of	guilty	. .	.	may	be	made	only	before	sentence	is imposed.” The	 Dissent	 contends	 tha t	 Gordon’s	 attorney	 should	 have21 interrupted	the	court in	the	middle	of	its sentencing	analysis by	making an	oral motion	for	Gordon	to be	allowed	to withdraw	his	plea. Dissenting	Opinion	¶ 39

. Even	if such	a	motion	would	have	been	timely for	purposes	of Rule	35 and	even if	 counsel ’ s	 failure	 to	 make	 it	 reflected	 ineffective	 assistance

— questions	 we might	 well	 not	 decide	 in	 Gordon’s	 favor

— G ordon	 would	 not	 be	 able	 to demonstrate	 prejudice	 because	 he	 did	 not	 present	 any	 evidence	 during	 the post
- conviction	 hearing to	 suggest that	 the	 court	 wou ld	 have	 granted the
motion had	it	been	made

. [¶ 26 ]		Gordon	also	appears	to	argue	that	his	counsel’s	failure	to	object	at the	sentencing	created	a	waiver	or	preservation	issue	as	to	his	argument	that the	court’s	statements	during	 the	dispositional	conference	 rendered	his	plea involuntary. See	Gordon ,	2021	ME	9,	¶	15	n.8,	246	A.3d	170	(noting	that	the court’s	 statements	 during	 the	 dispositional	 conference	 were	 not	 properly before	this	Court	because	Gordon	did	not	“appeal	from	the	order	denying	his motion	to	correct	or	reduce	his	sentence”).		As	we	wen t	on	to	explain,	however, citing State	v.	Adams ,	2018	ME	60,	¶	11,	184	A.3d	875,	Gordon’s	involuntariness argument	was	“collateral”	to	his	sentence	appeal	but could be	pursued	in	the context	of	a	petition	for	post

- conviction	review,	which	is	what	Gordon	ha s	done. Gordon ,	2021	ME	9,	¶	15	n.9,	246	A.3d	170.22 [¶ 27 ] The	 post

- conviction	 court	 decided	 that	 (1)	 Gordon’s	 attorney’s failure	to	object	to	the	sentence	at	the	time	of	sentencing	did	not	fall	below	an objective	 standard	 of	 reasonableness	 and	 (2)	 there	 was	 no	 reasonable probability	that	the	result	of	the	proceed ing

— including	the	sentence	and	the appeal

— would	 have	 been	 different	 if	 trial	 counsel	 had	 objected	 during	 the sentencing	hearing.		Gordon’s	arguments	do	not	persuade	us	otherwise. The	entry	is: Judgment	affirmed

.

JABAR,	J.,	dissenting. [¶28]	 	 I	 respectfully	 dissent	 because	 Gordon	 was	 misled	 into	 pleading guilty	 by	 his	 attorney’s	 faulty	 advice	 in	 reliance	 on	 statements	 made	 by	 the sentencing	judge	during	a	dispositional	conference	and	he	was	never	afforded the	opportunity	to	withdraw	his guilty	plea.		The	issue	before	us	is	the	conduct of	 Gordon’s	 attorney,	 not	 the	 conduct	 of	 the	 judge;	 however,	 the	 judge’s statements	to	the	parties	during	a	dispositional	conference	place	the	attorney’s representation	in	its	proper	context.		Because	Gordon was	misled

— whether	by his	attorney,	by	the	comments	of	the	sentencing	judge,	or	by	a	combination	of23 both

— his	 guilty	 plea	 was	 not	 knowingly	 and	 voluntarily	 made. See	 State	 v. Weyland ,	 2020	ME	 129,	¶	 29,	 240	A.3d	 841.	 	Prior	 to	 the	 court	imposing	 the sentence,	but	after	 the	court	completed	its Hewey analysis,	Gordon’s	attorney should	 have	 moved	 the	 court	 to	 allow	 Gordon	 to	 withdraw	 his	 guilty	 plea pursuant	to	Maine	Rule	of	Unified	Criminal	Procedure	32(d). [¶29]		In	a	post

- conviction	petition,	the	defendant	must	demonstrate	that (1)	 his	 attorney’s	 representation	 fell	 below	 an	 objective	 standard	 of reasonableness	 and	 (2)	 his	 attorney’s	 errors	 had	 an	 adverse	 effect	 on	 the defense. Strickland	v.	Washington ,	466	U.S.	668,	688,	693	(1984); Ford	v.	State , 2019	ME	47,	¶ 11,	205	A.3d	896.		I	believe	that	the	defendant	has	demonstrated both	prongs	of	the Strickland test.
A. Attorney’s	Representation [¶30]	 	 Under	 the	 first	 prong	 of	 the Strickland test,	 the	 petitioner	 must demonstrate	his	attorney’s	deficient	conduct. Strickland ,	466	U.S.	at	687

- 88.		In Gordon’s	case,	 there	is	no	dispute	 that,	during	a	dispositional	conference,	 the sentencing	 judge	 told	 the	 State’s	 attorney	 and	 Gordon’s	 attorney	 that	 he believed	that	the	State’s	recommended	sentence	of	eight	years	straight	and	th e defense’s	recommendation	of	ten	years,	with	all	but	six	years	suspended,	with probation,	were	both	“in	the	realm	of	reasonab leness.”		With	the	parties	at	an24 impasse	 regarding	 the	 two	 proposed	 sentence	 recommendations,	 the	 judge recommended	 that	 the	 parties	 instead	 agree	 to	 a	 plea	 of	 guilty	 with	 an agreed

- upon	cap.		Ultimately,	they	agreed	to	a	twelve

- year	cap. [¶31]	 	 In State	 v.	 Sanney ,	 the	 Hawaii	 Supreme	 Court,	 referencing	 ABA Standards	for	Criminal	Justice,	Pleas	of	Guilty,	Standard	14

- 2.1	(Am.	Bar	Ass’n 3d	ed.	1999),	adopted	a	standard	that,	“if	a	defendant	pleads	guilty	or	no	contest in	response	to	a	court’s	sentencing	inclination, but	the	court	later	decides	not	to follow	the	inclination,	then	the	court	must	so	advise	the	defendant	and	provide the	defendant	with	the	opportunity	to	affirm	or	withdraw	the	plea	of	guilty	or no	contest.” 14 404	P.3d	280,	291	(Haw.	2017).		The Sanney court	noted	that	this rule	would	protect	defendants	from	questioning	“whether	they	were	somehow misled	into	entering	into	a	change	of	plea	based	on	a	judge’s	stated	sentencing inclination”	and	would	ensure	that	the	record	“is	adequate	to	make	a	reasoned

a nd	 informed	 judgment	 as	 to	 the	 appropriate	 penalty,”	 including	 containing “adequate	reasons	.	.	.	for	[a]	change	in	a	trial	court’s	sentencing	inclination.” Id. Although	Gordon’s	sentencing	judge	may	not	have	indicated	a	specific	sentence

14 An	indicated	sentence,	or	sentencing	inclination,	is	a	court’s	recommendation	of	“what	sentence it	will	impose	if	a	given	set	of	facts	is	confirmed,	irrespective	of	whether	guilt	is	adjudicated	at	trial or	admitted	by	plea.” People	v.	Clancey ,	299	P.3d	131,	135	(Cal.	2013) (alteration	and	quotation	marks omitted) .		A	court	making	a	sentencing	inclination	may	never	bargain	with	the	defendant	over	the sentence,	and	the	court	should	avoid	indicating	a	sentence	while	plea	bargaining	is	ongoing	“unless the	court	is	convinced	the	punishment	proposed	by	the	[State]	is	no t	an	appropriate	sanction.” Id. at 138

- 39; accord State	v.	Gordon ,	2021	ME	9,	¶¶ 31

- 32,	246	A.3d	170	(Jabar,	J.,	concurring).25 when	 he	 expressed	 his	 opinion	 that	 the	 State’s	 and	 Gordon’s	 attorneys’ recommendations	both	were	in	the	realm	of	reasonableness,	his	comments	led Gordon’s	attorney	to	reasonably	believe	that	he	was	indicating	his	inclination toward	a	sentence	in	the	range between	the	two	recommendations. [¶32]	 	 Notwithstanding	 my	 concern	 with	 the	 actions	 of	 the	 sentencing judge,	the	judge’s	conduct	is	not	before	us	because	Gordon’s	attorney	failed	to properly	raise	that	issue	below	by	appealing	the	denial	of	Gordon’s	motion	to correct	or	reduce	his	sentenc e. Gordon ,	2021	ME	9,	¶	15	n.8,	246	A.3d	170; see generally M.R.U.	 Crim.	 P.	 35.	 	 When	 Gordon	 ultimately	 sought	 review	 of	 his sentence,	 we	 stated	 that	 the	 issue	 surrounding	 the	 judge’s	 conference statements	and	Gordon’s	attorney’s	advice	 following	that	con ference	could	be raised	only	on	post

- conviction	review. Gordon ,	2021	ME	9,	¶	15	nn.8

- 9,	246	A.3d
170.		Here	we	are. [¶33]		The	attorney’s	conduct	is	now	before	us.		The	attorney’s	reliance	on the	 judge’s	 sentencing	 statements	 during	 the	 dispositional	 conference	 and advice	 to	 Gordon	 that	 he	 would	 receive	 a	 sentence	 consistent	 with	 those statements	if	he	agreed	 to	a	cap	p lea,	combined	with	 the	attorney’s	 failure	 to move	 to	 allow	 Gordon	 to	 withdraw	 his	 guilty	 plea,	 constitute	 deficient representation	below	an	objective	standard	of	reasonableness.26 [¶34]		It	is	obvious	from	the	attorney’s	testimony	at	the	post

- conviction hearing	that	he	relied	on	the	judge’s	statements.		The	attorney	testified	that	he “didn’t	understand	why	a	judge	would	recommend	a	cap	and	not	.	.	.	do	one	of the	 two	 or	 something	 in between.”	 	 The	 attorney	 was	 “encouraged”	 by	 the judge’s	 statements,	 and	 expressed	 to	 Gordon	 after	 the	 conference	 that	 he believed	that	Gordon	“would	be	no	worse	off	by	going	in	front	of	the	judge	with the	cap	than	if	he	[was]	to	work	something	out	by	agre ement	with	the	state.”		He believed	he	“was	liberating	the	judge	to	do	something	along	the	lines	of	what [the	State]	and	[the	defense]	had	already	talked	about”	and	advised	Gordon	that the	 only	 way	 to	 receive	 a	 sentence	 within	 the	 range	 of	 the	 parties’

rec ommendations	 was	 to	 agree	 to	 a	 cap	 proposed	 by	 the	 prosecutor	 at	 the judge’s	suggestion. 15 [¶35]		The	attorney	testified	that	Gordon	was	receptive	to	that	advice	and ultimately	 agreed	 to	 the	 cap	 plea	 despite	 initial	 reservations.	 	 The	 attorney further	testified	that,	in	discussing	the	plea	options	with	Gordon,	given	“the	way the	dispositional	co nference	played	out,	[they]	wanted	[the	conference	judge]	to

15 The	 Court’s	 decision	 states	 multiple	 times	 that	 Gordon’s	 attorney	 advised	 him	 that	 the twelve

- year	cap	plea	was	 the	only	hope	of	receiving	a	split	sentence. Supra ¶¶	4,	8.		This	grossly understates	the	attorney’s	advice.		The	attorney’s	advice	to	plead	guilty	with	a	twelve

- year	cap	was given	not	because	it	was	the	only	way	for	Gordon	to	receive	a	split	sentence	but	because	the	attorney believed	and	expressed	to	Gor don	that,	if	he	agreed	to	the	cap,	he	would	receive	a	sentence	within the	range	of	the	recommendations	made	during	the	dispositional	conference.27 be	 the	 sentencing	judge.”	 	 Finally,	 the	attorney	 testified	 that	 he	 believed	 that Gordon	would	have	agreed	to	the	State’s	proposed	eight

- year - straight	sentence had	he	advised	Gordon	to	take	it.		This	testimony	demonstrates	that	the	attorney believed	 Gordon would	 receive	 a	 sentence	 no	 greater	 than	 the	 State’s recommendation	of	eight	years	straight	if,	and	only	if,	he	agreed	to	the	cap	in reliance	on	the	judge’s	statements	that	the	recommendations	of	the	State	and the	defense	were	reasonable.		This	belief	was expressed	to	Gordon. [¶36]	 	 Gordon	 testified	 that	 his	 attorney	 informed	 him	 of	 the	 judge’s comment	that	both	parties’	recommended	sentences	were	reasonable	and	told Gordon	that	he	“would	get	between	what	he	asked	for	and	what	[the	State]	asked for	since	the	judge	said	it	was	r easonable.”		Based	on	his	discussions	with	the attorney,	Gordon	understood	 that	 the	sentence	would	be	between	 the	State’s and	 the	 defense’s	 recommendations	 at	 the	 dispositional	 conference.	 	 He	 did acknowledge	that	the	attorney	made	no	guarantees.		But	when asked	whether his	attorney	told	him	that	he	was	risking	more	than	eight	years	in	prison	if	he agreed	 to	 a	 twelve

- year	 cap,	 Gordon	 responded,	 “Not	 to	 my	 knowledge.” Gordon,	 like	 his	 attorney,	 also	 testified	 that	 he	 would	 have	 taken	 the	 State’s proposed	 ei ght	 years	 straight	 had	 his	 attorney	 recommended	 it,	 because otherwise	he	risked	receiving	a	higher	sentence.28 [¶37]	 	 Prior	 to	imposing	 the	 sentence,	 the	judge	 enunciated	 his Hewey analysis,	 concluding	 that	 the	 court	 would	 impose	 a	 sentence	 of	 twelve	 years straight.	 	 Following	 the Hewey analysis	 and	 before	 the	 judge	 imposed	 the sentence,	Gordon’s	attorney	never	interjected	 to	raise	 the	issue	of	 the	judge’s statements	during	the	dispositional	conference	and	his	mistaken	belief	that	the judge	would	impose	a	sentence	between	what	the	judge considered	to	be	two reasonable	recommendations.		The	attorney	 failed	 to	notify the	judge	 that	he had	advised	his	client	to	plead	guilty	based	on	the	judge’s	sentencing	comments made	 during	 the	 dispositional	 conference.	 	 And	 most	 importantly,	 he	 never made	a	motion	to	allow	Gordon	to	withdraw	his	guilty	plea. 16 [¶38]		The	attorney	acknowledged	these	mistakes	during	his	testimony. When	asked	whether	he	orally	stated	that	the	contested	sentencing	hearing	was the	result	of	the	dispositional	conference	statements	regarding	the	defendant’s ability	to	argue	for	an	alt ernative,	shorter	sentence,	the	attorney	admitted	that he	did	not.		When	asked	whether,	when	the	court	completed	its Hewey analysis, he	moved	for	Gordon	to	be	allowed	to	withdraw	his	plea,	the	attorney	conceded

16 The	 fact,	as	 the	Court	observes,	 that	Gordon’s	attorney	did	not	“voice	any	objection	or	even surprise	 in	 response	 to	 the	 sentence”	 is	 precisely	 the	 problem.	 	 The	 attorney	 should	 have	 been surprised	and	should	have	objected.29 that	 he	 did	 not	 because	 he	 did	 not	 believe	 that	 there	 was	 a	 legal	 basis	 to withdraw	the	plea. [¶39]		This	was	a	misreading	of	 the	law.		The	attorney	could	have,	and should	have,	moved	the	court	to	allow	Gordon	to	withdraw	his	plea	immediately following	the	court’s Hewey analysis	but	before	the	judge	imposed	the	sentence. A	motion	to	withdraw	a	guilty	plea	may	be	made	before	a	sentence	is	imposed. M.R.U.	 Crim.	 P.	 32(d); State	 v.	 Hillman ,	 2000	 ME	 71,	 ¶	 7,	 749	 A.2d	 758	 (“A defendant	may	seek	to	withdraw	a	plea	of	guilty	.	.	. any	time before	sentence	is imposed.”	 (emphasis	added)) .		The	attorney	neve r	moved	 to	allow	Gordon	 to withdraw	his	plea	and	never	attempted	to	conference	with	the	court	regarding the	judge’s	 comments	 during	 the	 dispositional	 conference	 and	 the	 attorney’s reliance	on	those	comments	when	advising	Gordon	to	plead	with	a	twelve

- year cap	in	place

— advice	the	attorney	admits	was	“bad	advice.” [¶40]		Instead,	the	attorney	mistakenly	believed	that	he	could	address	in a	Rule	35	motion	the	sentencing

- inclination	issue	surrounding	the	dispositional conference	statements. See M.R.U	Crim.	P.	35.		Again,	 this	was	error,	and	 the attorney	acknowledged	as	much.		And	despite	believing	that	a	Rule	35	motion was	the	proper	vehicle	to	rectify	the	issue	created	by	the	comments	made	by	the30 judge	 during	 the	 dispositional	 conference,	 the	 attorney	 never	 appealed	 the denial	of	that	motion. [¶41]	 	 I	 agree	 with	 the	 Court	 that	 an	 attorney’s	 estimate	 of	 what	 the sentence	might	 be	is	 not	 necessarily	 grounds	 for	 post

- conviction	 relief.	 	 This case,	however,	is	distinguishable	from	the	cases	that	the	Court	cites	to	support that	contention.		The	Cour t	likens	Gordon’s	case	to United	States	ex	rel.	Scott	v.
Mancusi ,	 but	 the	 cases	 differ	 in	 critical	 aspects.	 	 First,	 prior	 to	 accepting	 the defendant’s	 guilty	 plea,	 the Mancusi sentencing	 court	 discussed	 with	 the defendant	the	judge’s	statements	at	an	earli er	conference	regarding	sentencing with	 the	 defendant.	 	 429	 F.2d	 104,	 106	 (2d	 Cir.	 1970).	 	 The	 judge gave	 the defendant	multiple	opportunities	to	confirm	that	he	understood	that	his	sentence may	not	be	consistent	with	the	statements	made	at	the	earlier	conference

. 17 Id.

17 The Mancusi sentencing judge,	who	had	told	the	defendant’s	attorney	in	a	conference	prior	to the	plea	colloquy	that	he	would	consider	ordering	a	portion	of	the	defendant’s	sentence	to	be	served in	another	jurisdiction,	made	the	following	disclosure	to	the	defendant	prior	to	acce pting	his	guilty plea: Your	attorney	has	indicated	to	me	that	he’s	getting	some	correspondence	from	the correction	or	prison	officials	in	Washington,	D.C.,	which	will	indicate	to	the	court	what action	they	are	going	to	take	and	he’s	going	to	submit	that	to	me	and	after	I	have	ha d this	documentary	evidence	I	will	then	have	to	make	a	determination	as	to	whether	or not	I	can	send	you	back	or	whether	you	should	go	to	Attica	here	in	this	state,	are	you aware	of	that?
Mancusi ,	429	F.2d	at	106. When	the	defendant	answered	affirmatively,	the	judge	went	on:31 The	Second	Circuit	noted	that,	although	the	attorney	had	told	the	defendant	that he	“felt	sure”	that	the	judge	would	order	the	sentence	to	be	served	in	another jurisdiction,	“[t]he	pleading	colloquy	.

. . demonstrates	that	[the	defendant]	knew the	 matter	 was	 still	 far	 from	 settled.” Id. at	 108.	 	 In	 contrast,	 the	 court	 at Gordon’s	 plea	 colloquy	 never	 discussed	 the	 statements	 made	 during	 the dispositional	conference	that	Gordon	relied	upon,	per	his	attorney’s	advice,	in accepting	 the	 cap	 plea,	 or	 gave	 Gordon the	 opportunity	 to	 confirm	 that	 he understood	that	he	may	not	be	sentenced	consistently	with	those	statements. [¶42]		Second,	when	Mancusi	learned	that	he	may	not	receive	the	sentence that	had	induced	him	to	plead	guilty,	he	moved	to	withdraw	his	plea	and,	after the	court	denied	the	motion,	the	attorney	again	requested	that	the	defendant	be

In	other	words,	I	am	not	telling	you	now	and	I	have	not	told	your	attorney	or	the assistant	district	attorney	that	you	are	under	all	conditions,	under	all	circumstances going	back	to	Washington,	D.C.		That	might	not	happen. Id. The	defendant	again	said,	“Yes.” Id. Still,	the	court	continued	the	exchange: The	Court:	You	are	aware	of	that? The	Defendant:	Yes,	sir. The	Court:	It	might	well	be,	after	reviewing	the	papers	and	probation	investigation that	 I	might	 feel	 that the	interest	 of	justice	might	be	 served	by	 your being	sentenced	to	serve	your	term	here	in	New	York	State. The	Defendant:		Yes. The	Court:	Now,	with	that	explanation	do	you	want	to	say	anything? The	Defendant:	Well,	I	don’t	guess	I	have	anything	to	say. The	Court:	Has	everything	I	said	been	understandable	to	you. The	Defendant:	It’s	been	understandable	to	me. Id. Only	then	did	the	court	proceed	with	questions en suring that the	defendant’s	plea	of	guilty was	knowing	and	voluntary.32 permitted	to	withdraw	his	guilty	plea. Id. at	107.		On	appeal,	the	Second	Circuit noted	 that	 an	 argument	 for	 withdrawal	 based	 on	 the	 defendant	 having	 been “misled”	 by	 his	 attorney’s	 suggestion	 that	 he	 would	 be	 allowed	 to	 serve	 his sentence	in	another	jurisdiction	would	have	been	“a	strong	one.” Id. at	108

- 09. Here,	Gordon’s	attorney	failed	to	move	for	Gordon	to	withdraw	his	plea,	which would	have	been	justified	based	on	the	attorney	having	misled	Gordon	to	enter a	guilty	plea.		Unlike	Mancusi,	Gordon	was	never	afforded	 the	opportunity	 to affirm	 t hat	he	understood	 that	 the	judge	may	sentence	him	outside	 the	range that	 the	 attorney	 assured	 him	 the	 judge	 found	 reasonable,	 and	 Gordon’s attorney	 never	 moved	 the	 court	 to	 allow	 Gordon	 to	 withdraw	 his	 plea	 after learning	that	the	judge	would	not	sentence him	within	that	range. [¶43]		The	other	cases	cited	by	the	Court	do	not	support	its	decision	in	this case.		 In	both United	States	ex	rel.	Bullock	v.	Warden,	Westfield	State	Farm	for
Women ,	408	F.2d	1326,	1328

- 30	(2d	Cir.	1969),	and United	States	ex	rel.	Curtis v.	Zelker ,	466	F.2d	1092,	1096

- 97	(2d	Cir.	1972),	the	defendants’	attorneys	were not	relying	on	the	statements	of	the	sentencing	judge	when	they	advised	their clients	to	plead	guilty,	and	thus	their	clients	could	not	reasonably	have	believed that	 the	 advice	 was	 any thing	 mor e	 than	 the	 attorney’s	 estimate	 of	 what	 the sentence	 might	 be.	 	 The	 context	 of	 Gordon’s	 plea,	 including	 the	 judge’s33 statements	regarding	 the	reasonableness	of	 the	parties’	sentencing	proposals and	the	attorney’s	reliance	on	those	statements,	is	of	paramount	importance	in deciding	whether	Gordon	knowingly	entered	a	guilty	plea. [¶44]		The	Court	indicates	in	a	footnote	that	Gordon’s	attorney’s	reliance on	 the	 judge’s	 comments	 during	 the	 dispositional	 conference	 was	 not	 an “irrational	 interpretation”	 of	 the	 judge’s	 comments	 regarding	 a	 reasonable sentence.		Court’s	Opinion ¶	18	n.11.		This	statement	clearly	demonstrates	the dilemma	 before	 us.	 	 On	 one	 hand,	 if	 Gordon’s	 attorney	 was	 rational

— and	 I assume	 that	 the	 Court	 means	 “reasonable”

— in	 interpreting	 the	 judge’s comments	 as	 a	 forecast	 of	 the	 likely	 sentencing	 range,	 then	 th e	 judge’ s comments	were	an	indication	of	his	inclination	to	sentence	Gordon	to	something between	 the	 two	 reasonable	 positions	 of	 the	 parties	 proposed	 during	 the dispositional	 conference.	 	 And	 when	 the	 sentencing	 judge	 later	 failed	 to sentence	Gordon	according	 to	 t he	attorney’s	 reasonable	interpretation	 of	 the sentencing	 inclination,	 the	 attorney	 should	 have	 objected,	 asked	 for clarification,	and	ultimately	moved	the	court	to	allow	Gordon	to	withdraw	his plea. [¶45]	 	 On	 the	 other	 hand,	 if	 Gordon’s	 attorney	 was	 irrational,	 or unreasonable,	 in	 understanding	 the	 sentencing	 judge’s	 comments	 during	 the34 dispositional	 conference	 as	 an	indication	 of	 the	likely	 sentence,	 then	 he	gave Gordon	substandard	advice	when	he	conveyed	to	Gordon	that	if	Gordon	pleaded guilty	 the	 judge	 would	 impose	 a	 sentence	 of	 no	 more	 than	 the	 eight	 years straight	proposed	by	 the	Sta te	during	 the	conference.		Again,	when	 the	judge completed	the Hewey analysis,	the	attorney	should	have	objected	and	notified the	sentencing	judge	 that	he	had	misinterpreted	 the	judge’s	comments	at	 the dispositional	 conference	 and	 given	 Gordon	 faulty	 advic e	 based	 on	 those comments.		Either	way,	Gordon	was	misled	into	pleading	guilty	as	a	result	of	the judge’s	comments,	his	attorney’s	deficient	counsel,	or	a	combination	of	both. [¶46]		Gordon’s	attorney’s	failure	to	rectify	this	issue	by	moving	to	allow Gordon	to	withdraw	his	guilty	plea	prior	to	the	court	imposing	the	sentence	was legal	representation	below	an	objective	standard	of	reasonableness	under	the first	prong	of Strickland

.

B. Prejudice [¶47]	 	 Under	 the	 second Strickland prong,	 the	 prejudice	in	 this	 case	is obvious.		A	defendant	is	entitled	withdraw	his	guilty	plea	if	it	can	be	shown	that his	plea	was	not	knowingly	and	voluntarily	made. See M.R.U.	Crim.	P.	11; State v.	Pfeil ,	1998	ME	245,	¶	7,	720	A.2d	573

. In State	v.	Weyland ,	we	 stated	 that “[a]lthough	 relief	 should	 be	 granted	 liberally,	 a	 defendant	 does	 not	 have	 an35 absolute	right	to	withdraw	a	plea.”		2020	ME	129,	¶	17,	240	A.3d	841	(quotation marks	omitted).		Rather, [t]rial	 courts	 evaluate	 four	 factors	 when	 deciding	 motions	 to withdraw	 pleas,	 and	 we	 similarly	 evaluate	 those	 factors	 when reviewing	a	 trial	 court’s exercise	 of	 discretion.	 	 They	are	 (1)	 the length	 of	 time	 between	 the	 defendant’s	 entering	 the	 plea	 and seeking	 to	withdraw	it;	(2)	any	prejudice	 to	 the	State	 that	would result	if	the	plea	were	withdrawn;	(3)	the	defendant’s	assertion	of innocence;	and	(4) any	deficiency	in	 the	Rule	11	proceeding.		No one	factor	is	necessarily	dispositive.		However,	one	factor’s	weight alone	may	tip	the	scale	in	the	defendant’s	favor. Id. ¶	18	(citations	and	quotation	marks	omitted). [¶48] It	 is	 true	 that,	 under	 the	 first	 and	 third	 factors,	 there	 was considerable	time	between	Gordon’s	plea	and	sentencing, see	Hillman ,	2000	ME 71,	 ¶	 9,	 749	 A.2d	 758	 (stating	 that	 nineteen	 days	 between	 entry	 of	 plea	 and request	 to	 withdraw	 plea	 weighs	 in	 defendant’s	 favor),	 and	 Gordon	 did	 not assert	 innocence, see	 id. ¶	 12	 (“[T]he	 complete	 absence	 of	 a	 protestation	 of innocence	in	support	of	a	motion	to	withdraw	weighs	against	a	defendant	.	.	.	.”). However,	if	Gordon	 had	 been	afforded	 the	 opportunity	 to withdraw	 his	 plea, there	would	have	been	no	prejudice	to	the	State	because	it	could	have	presented any	evidence	against	Gordon	at	trial. See	id. ¶	10	&	n.5. [¶49] Further,	and	more	importantly,	the	Rule	11	proceeding	in	this	case was	compromised.		Though	“[w]e	have	never	required	strict	compliance	with36 Rule	11	in	order	to	uphold	a	guilty	plea,”	the	proceeding	is	defective	“if	the total record fails	 to	 establish	 adequately	 a	 factual	 matrix	 by	 which	 the	 plea	 is affirmatively	 shown	 to	 have	 been	 voluntarily	 and	 understandingly	 made.” Weyland ,	 2020	ME	 129,	 ¶	 29,	 240	 A.3d	 841	 (alteration	 and	 quotation	marks omitted).		Here,	the	facts	indicate	that	Gordon’s	plea	was	not	voluntary	because it	was	induced	by	the	attorney’s	misplaced	reliance	on	the	judge’s	statements	at the	 dispositional	 conference and	 assurances that	 Gordon	 would	 receive	 a sentence	no	greater	than	the	State’s	recommendation	of	eight	years	straight.		In
State	v.	Rose ,	the	Missouri	Supreme	Court	stated	that	“[i]f	the	defendant	should be	misled	or	be	induced	to	plead	guilty	by	fraud	or	mistake,	by	misapprehension, fear,	 persuasion,	 or	 the	 holding	 out	 of	 hopes	 which	 prove	 to	 be	 false	 or	 ill founded,	he	should	be	permitte d	to	withdraw	his	plea.” 440 S.W.2d	441,	443 (Mo. 1969)	 (quotation	 marks	 omitted).	 	 Similarly,	 in Ex	 parte	 Otinger ,	 the Alabama	Supre me	 Court	 held	 that	a	 defendant	 should	 have	 been	afforded	an opportunity	 to	 withdraw	 his	 guilty	 plea	 when	 the	 trial	 judge’s	 indication	 to defense	 counsel	 that	 defendant	 would	 receive	 a	 split	 sentence	 materially induced	 the	 defendant’s	 guilty	 plea,	 but	 the	 j udge	 later	 imposed	 a	 straight

sentence. 493	So.	2d	1362,	1363

- 64	(Ala.	1986)37 [¶50] The	errors	committed	by	Gordon’s	attorney	clearly	had	an	adverse effect	on	 the	defense.		Why	else	would	Gordon	and	his	attorney	indicate	 that Gordon	 would plead	 guilty	 only	 if	 the	 same	 judge	 who	 made	 the	 statements during	the	dispositional	conference	presided	at	the	sentencing	hearing?		Gordon was	 relying	 upon	 his	 attorney’s	 misplaced	 advice.	 	 Had	 the	 attorney	 acted immediately	 before	 the	 court	 imposed	 its	 s entence,	 “there	 is	 a	 reasonable probability	that	the	result	of	the	proceeding	would	have	been	different”:	Gordon would	have	been	able	to	withdraw	his	guilty	plea. 18 Ford ,	2019	ME	47,	¶	20,	205 A.3d	896	(quoting Strickland ,	466	U.S.	at	694).

Paul	D.	Corey,	Esq. (orally) ,	Auburn,	for	appellant	Mario	Gordon Aaron	 M.	 Frey,	 Attorney	 General, and Katie	 Sibley,	 Asst.	 Atty.	 Gen. (orally) , Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Unified	Criminal	Docket	docket	number	CR

- 2020

- 340 F OR C LERK R EFERENCE O NLY

18 “A	reasonable	probability	is	a	probability	sufficient	to	undermine	confidence	in	the	outcome.” Ford	v.	State ,	2019	ME	47,	¶	14,	205	A.3d	896	(quoting Strickland ,	466	U.S.	at	694).