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Fortune v. State

Supreme Court of Maine

April 4, 2017


          Argued: February 6, 2017

         Reporter of Decisions

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Daniel L. Fortune

          Maeghan Maloney, District Attorney (orally), Kennebec County District Attorneys Office, Prosecutorial District IV, Augusta, for appellee State of Maine


          GORMAN, J.

         [¶1] Daniel L. Fortune appeals from a judgment of the Superior Court (Kennebec County, Marden, J.) denying his petition for post-conviction review, which was based, in part, on a claim of ineffective assistance of appellate counsel. We affirm the courts judgment.

         I. BACKGROUND

         [¶2] On August 28, 2008, the State charged Daniel L. Fortune by indictment with fourteen criminal offenses, [1] including four counts of aggravated attempted murder (Class A), 17-A M.R.S. § 152-A(1) (2007).[2] In May of 2010, the court (Somerset County, Murphy, J.) held a jury trial at which State witness Leo Hylton-Fortunes alleged accomplice who had earlier pleaded guilty-testified repeatedly that he could not recall the events of the night in question. On cross-examination, Fortune directed Hyltons attention to two portions of a letter that Hylton had written to the victims of the crime and had read aloud in court as part of his sentencing allocution several months earlier.[3] Hylton agreed that he had made an allocution, he had written the letter, the handwriting in the letter was his own, and the statements in the letter were true, but testified that he could not recall making the allocution or writing the letter. As he left the stand, the court reminded Hylton that he was "not finally excused from testifying."

         [¶3] The next day, the State moved to admit the entirety of Hyltons sentencing allocution. Over Fortunes objection, the court admitted the allocution pursuant to M.R. Evid. 106 because the portions of the letter highlighted by Fortune, if considered out of context, might suggest that Hylton was taking sole responsibility for the crimes rather than apologizing for failing to stop Fortune from committing them. The allocution was then read aloud to the jury while Hylton was in another room. Fortune did not recall Hylton to question him regarding the entire allocution.

         [¶4] On May 14, 2010, Fortune was convicted of all charged offenses. After a hearing, the court imposed multiple life sentences in addition to multiple lesser sentences, all to be served concurrently. Fortune appealed his convictions and sentences, and we affirmed the judgments. State v. Fortune, 2011 ME 125, ¶¶ 1-2, 34 A.3d 1115.

         [¶5] Fortune filed a petition for post-conviction review in the Superior Court (Kennebec County)[4] in accordance with 15 M.R.S. § 2129 (2011).[5] He asserted several grounds for relief, including that his right to confront witnesses against him pursuant to the Confrontation Clause, U.S. Const. amend. VI, had been violated when Hyltons allocution was read to the jury absent further cross-examination. With regard to this claim, Fortune asserted that both trial counsel and appellate counsel had failed to provide effective assistance. Because appellate counsel was unavailable to appear at the post-conviction hearing, [6] Fortune and the State stipulated that Fortunes appellate counsel did not discuss, research, or raise the Confrontation Clause issue on appeal because he had not wished to obscure what he considered to be more meritorious arguments by raising an issue that would be reviewed for obvious error.[7]

         [¶6] After a testimonial hearing, in a judgment dated December 23, 2015, the court (Marden, J.) denied Fortunes petition. As noted, Fortune had claimed that both trial counsel and appellate counsel were ineffective. The court held that Fortune had failed to prove that trial counsel was ineffective, and Fortune has not challenged that determination.[8] Regarding Fortunes contention that he received ineffective assistance of appellate counsel, however, the courts judgment is confusing and internally inconsistent. The court found that Fortunes appellate counsel was "deficient in failing to present [the Confrontation Clause issue]" because that issue was "as strong if not stronger" than some of the issues that were raised on appeal. In addition, the court seemed to grant Fortunes petition with regard to the Confrontation Clause issue; it stated that Fortune "is entitled to an appeal on that very issue." Despite this language, however, the court did not make an express finding as to whether appellate counsels failure to raise the Confrontation Clause issue prejudiced Fortunes direct appeal, and it ultimately denied Fortunes petition.

         [¶7] In a motion for reconsideration, Fortune pointed out the inconsistency to the court, proposing that the court had in fact intended to grant his petition regarding the claim of ineffective assistance of appellate counsel. Declining to modify its judgment, the court responded by stating that, in its original order, it had determined that appellate counsels performance "was not manifestly unreasonable, "[9] and had "therefore denied the petition with regard to appellate counsel." Despite that language, and despite once again denying Fortunes petition, however, ...

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