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Petgrave v. State

Supreme Court of Maine

May 21, 2019

JONATHAN A. PETGRAVE
v.
STATE OF MAINE

          Argued: December 12, 2018

          David Paris, Esq. (orally), Bath, for appellant Jonathan A. Petgrave

          R. Christopher Almy, District Attorney, and Mark A. Rucci, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          MEAD, J.

         [¶1] For the third time in recent years we are called upon to establish a procedure for bringing a claim of ineffective assistance of counsel in a specific context where a party has the right to the effective assistance of counsel and where no statutory procedure to enforce that right existed previously-here in the context of a claim arising from a probation revocation judgment. See In re Henry B., 2017 ME 72, 159 A.3d 824 (claim of ineffective assistance of counsel arising from an involuntary commitment proceeding); In re M.P., 2015 ME 138, 126 A.3d 718 (claim of ineffective assistance of counsel arising from a termination of parental rights proceeding). We do so being mindful of two primary considerations: (1) the Legislature has provided by statute that review of a revocation of a defendant's probation "must be by appeal to the Law Court," 17-A M.R.S. § 1207(1) (2018); and (2) for that appeal to be meaningful, we must have a sufficiently well-developed record to review.

         I. BACKGROUND

         [¶2] In August 2016, after Jonathan Petgrave pleaded guilty to a charge of unlawful possession of a scheduled drug (Class B), 17-A M.R.S. § 1107-A(1)(A)(2) (2018), the trial court (Aroostook County, Hunter, J.) entered a judgment and commitment imposing a sentence of three years' imprisonment with all but 120 days suspended, two years of probation, a $500 fine, and payment of $120 in restitution.

         [¶3] One year later, the State moved to revoke Petgrave's probation, alleging that he had committed a serious domestic violence assault. While that motion was pending, the State filed a second motion to revoke, alleging that Petgrave was unlawfully in possession of a firearm. Petgrave entered denials to both motions and counsel was appointed to represent him. The court [Stewart, J.) then changed venue to Penobscot County on Petgrave's motion. On December 19, 2017, following an evidentiary hearing on the first motion to revoke, the court [Campbell, /.) found that Petgrave had violated his probation. At a dispositional hearing the court fully revoked Petgrave's probation and ordered that he serve the two years, eight months remaining on his underlying sentence. It declared the second motion to revoke moot.

         [¶4] Petgrave requested a certificate of probable cause to appeal pursuant to M.R. App. P. 19, asserting that there was insufficient evidence to establish either that he was on probation at the time of the alleged assault or that the assault occurred. We denied the request.

         [¶5] While that request was pending, Petgrave, with new counsel, filed a petition for post-conviction review in the trial court alleging that his counsel had been ineffective at the revocation hearing in failing to call unspecified witnesses and in "fail[ing] to present a proper defense." The court [Anderson, J.) summarily dismissed the petition, determining that pursuant to 15 M.R.S. § 2121(2) (2018), "post-sentencing proceedings which are proper to challenge on post-conviction review do not include revocation of probation hearings." (Alterations and quotation marks omitted); see M.R.U. Crim. P. 70(b). The court concluded that Petgrave's remedy for any claim of error arising from the revocation hearing was to seek a discretionary appeal pursuant to 17-A M.R.S. § 1207(1), as he had already done. Petgrave appealed from the summary dismissal of his petition and we granted a certificate of probable cause. M.R. App. P. 19(a)(2)(F).

         II. DISCUSSION

         A. Petgrave's Right to Effective Assistance of Counsel

         [¶6] Petgrave asserts that beyond the bare right to have counsel represent him at the hearing, he had a due process right to the effective assistance of counsel. The State agrees, as do we. The Legislature grants a person accused of violating probation the right to counsel, including the right to court-appointed counsel if the person is indigent, 17-A M.R.S. § 1205-C(4) (2018), [1] and we recently held in another context involving the potential deprivation of liberty that "where a state statute affords an individual . . . the right to counsel, the legislature could not have intended that counsel could be prejudicially ineffective." In re Henry B., 2017 ME 72, ¶ 6, 159 A.3d 824 (quotation marks omitted). Applying the same rationale here, we conclude that Petgrave had the right to have counsel assist him effectively before his probation was revoked and he was subjected to further incarceration.

         B. The Strickland Test

         [¶7] Petgrave next urges that the question of whether he received effective assistance at the revocation hearing should be answered by applying the two-part test first articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984), which applies to claims of ineffective assistance of counsel at criminal trials, see, e.g., Fahnley v. State, 2018 ME 92, ¶ 17, 188 A.3d 87l.[2] Again, the State agrees.

         [¶8] We also agree that Strickland is the proper test for evaluating whether counsel was effective in this context. It is the test used to evaluate such claims arising from criminal trials, Fahnley,2018 ME 92, ¶ 17, 188 A.3d 871; involuntary commitment proceedings, In re Henry B.,2017 ME 72, ¶ 9, 159 A.3d 824; and proceedings to terminate parental rights, In re M.P., 2015 ME 138, ¶ 26, 126 A.3d 718; and, as we have noted, "[t]he Strickland standard is known to the bar and the bench, and Strickland carries with it a developing body of case law, which will aid courts in the efficient and timely resolution of such claims." In re ...


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