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Philbrook v. State

Supreme Court of Maine

July 20, 2017


          Argued: February 6, 2017

          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


          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 counsels representation during plea negotiations, and counsels illness and inattention 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 Philbrooks 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 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 States offer of a plea agreement and that there was a reasonable probability that he would have accepted it." With respect to counsels 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 counsels 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 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 Philbrooks appeal. See M.R. App. P. 19(f).


         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) "counsels 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 components of ...

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