JAMES A. PHILBROOK
STATE OF MAINE
Argued: February 6, 2017
LeClaire, Esq. (orally), Presque Isle, for appellant James A.
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., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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). 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
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.
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.
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
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).
Burden of Proof and Standard of Review
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 ...