Peter G. Bathgate, II, Petitioner
State of Maine, Respondent
For Peter G. Bathgate, II, Petitioner: VERNE PARADIE, PARADIE SHERMAN & WORDEN, LEWISTON ME.
For State, Respondent: EVERT FOWLE, WILLIAM STOKES.
ORDER ON PETITION FOR POST-CONVICTION REVIEW
Michaela Murphy, SUPERIOR COURT JUSTICE.
Before the Court is a Petition for Post-Conviction Review brought by Peter G. Bathgate, II who was convicted upon a guilty plea entered by him on January 27, 2012 to the intentional and knowing Murder of Paul A. Allen. The parties jointly recommended a sentence of 45 years in prison, which was accepted and imposed by the Court.
The Petitioner filed this matter on May 9, 2012. An Amended Petition was filed on August 1, 2012 after counsel was appointed. Petitioner is represented by Attorney Verne Paradis. The State is represented by Deputy Attorney General William Stokes. Hearing on the Petition was held on March 6, 2014. Before the hearing, Petitioner's counsel clarified that certain claims made in the Amended Petition were being withdrawn, specifically paragraphs 5-7.
The claims that remain for resolution by the Court are as follows. First, he alleges that trial counsel failed to adequately advise him about the defense of adequate provocation. Second, he alleges that Trial Counsel failed to adequately challenge the admissibility of statements Petitioner made to police. Third, he argues that Trial Counsel failed to effectively negotiate a plea agreement by not presenting his defenses to prosecutors and presenting him for a proffer regarding the involvement of Jessica Jones in the murder. She was his girlfriend at the time Paul Allen was killed by the Petitioner.
At hearing, the Petitioner called Dr. Carlysle Voss, M.D and the Petitioner. The State called Trial Counsel. The Court has considered the testimony of the witnesses, the admitted exhibits, and the written arguments of counsel, the last of which was received by the Court on March 31, 2014.
FINDINGS AND CONCLUSIONS
In order to prevail on this Petition for Post-Conviction Review, the parties agree that Petitioner must prove two things. First, he must establish that Trial Counsel's performance fell measurably below the performance that might be expected of an ordinary, fallible attorney. If he proves that, he must also prove that the substandard performance " likely deprived the defendant of an otherwise available substantial ground of defense." Legasse v. State , 655 A.2d 328, 329 (Me. 1995). The Court will address each claim separately in light of these standards.
I. Adequate provocation defense
Petitioner claims that Trial Counsel failed to competently prepare and present the affirmative defense of adequate provocation. The Court has reviewed the statutes in question which provide for this defense, and the Court has reviewed case law referenced by both parties, including State v. Hanaman , 2012 ME 40 and State v. Pulsifer , 1999 ME 24.
The Court concludes, based upon the essentially uncontested facts of what occurred, and viewing those facts in the light most favorable to the Defendant, that no instruction for this defense would have provided by the trial court even if the matter had gone to trial and been requested. As the parties know, in order to be entitled to this instruction, a person must not only be under the influence of extreme anger or extreme fear, but the extreme emotion (anger or fear) must have been provoked by the victim. The provocation, however, must also be legally adequate, which requires that the defendant's reaction be objectively reasonable. In addition, the Defendant must not have induced the provocation. Hanaman , ¶ 20. If a Defendant instigates or creates a situation or event that results in provocation, or places himself in a situation that results in arousal of fear or anger, the defense is unavailable. Id. 26 ; State v. Warmke , 2005 ME 99; State v. Lockhart , 2003 ME 108.
In this case, it is undisputed that the Defendant did " lure or bait Mr. Allen out to a secluded area in Hallowell, hide in the bushes for him, attach him with a cane, stab him multiple times and then run over him with his car...." State's Memorandum, pg. 5. Defendant's claim is that the victim provoked him because he had been " grooming" his daughter for sexual abuse (the Defendant claims the victim was a sex offender) and also because the victim had been making advances toward his girlfriend. However, these acts of provocation could hardly be seen as legally adequate given the law's requirement that the extreme anger or fear be close, if not immediate, in time to the acts provoking the extreme emotions. State v. Warmke , 2005 ME 99, ¶ 14. The failure of the ...