CHRISTOPHER R. AYOTTE
STATE OF MAINE
Argued November 4, 2015.
On the briefs: Alison B. Meyers, Esq., Hanley Law, LLC, Portland, for appellant Christopher Ayotte.
Kathryn Loftus Slattery, District Attorney, Prosecutorial District One, Alfred, and Anne Marie Pazar, Esq., for appellee State of Maine.
At oral argument: Alison B. Meyers, Esq., for appellant Christopher Ayotte.
Anne Marie Pazar, Esq., for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] This appeal is before us based on a certificate of probable cause, issued pursuant to 15 M.R.S. § 2131(1) (2014) and M.R. App. P. 19(f), authorizing Christopher R. Ayotte to appeal from a judgment entered in the Superior Court (York County, Fritzsche, J. ) denying his petition for post-conviction relief. The certificate authorized appeal on the issue of " [w]hether Ayotte's trial counsel in York County provided ineffective assistance in failing to seek dismissal of the indictment (ALFSC-CR-2013-165) on the ground that it would subject Ayotte to double jeopardy."
[¶2] Ayotte contends that the court erred as a matter of law when it denied his petition for post-conviction relief after his trial counsel did not assert a double jeopardy defense to Ayotte's second prosecution for the same theft offense. Ayotte argues that such a failure constitutes per se ineffective assistance of counsel. We vacate the trial court's judgment denying him post-conviction relief.
I. CASE HISTORY
[¶3] In February 2013, Ayotte was indicted in the Unified Criminal Docket (Cumberland County) for burglary (Class B), 17-A M.R.S. § 401(1)(B)(4) (2014), and theft by unauthorized taking or transfer (Class C), 17-A M.R.S. § 353(1)(B)(4) (2014). The charges were based on an alleged improper entry of and theft of items from a South Portland residence on
November 29, 2012. Count two of the indictment, charging Class ...