Christopher R. Ayotte v. State of Maine, 129 A.3d 285

In Feb 2013 Ayotte was indicted in Cumberland County for burglary and Class C theft based on taking items (including silverware) from a South Portland residence; he pleaded nolo contendere to Class C theft and was sentenced to 32 months.
In Apr 2013 Ayotte was separately indicted in York County for Class C receiving stolen property based on pawning some of the same silverware in Biddeford on the same date.
Different counsel represented Ayotte in the York County matter; that case was resolved by plea to a suspended six-month sentence with probation, consecutive to the Cumberland sentence.
Ayotte petitioned for post-conviction relief alleging York County counsel was ineffective for failing to move to dismiss the York indictment on double jeopardy grounds.
The trial court denied relief concluding the two prosecutions charged different conduct; the Supreme Judicial Court vacated and remanded, holding the York prosecution was barred by double jeopardy and counsel’s failure to raise the defense deprived Ayotte of effective assistance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the York County prosecution violated double jeopardy because it charged the same theft already decided in Cumberland County	Ayotte: the theft of the same silverware was a continuing theft; the Cumberland conviction barred a second prosecution in another county	State: the York charge targeted distinct conduct (disposal/pawning in a different county) and thus was a different offense	Court: conviction for continuing theft in Cumberland barred prosecution in York; the two statutes did not require different elements under Blockburger — double jeopardy barred the second prosecution
Whether counsel’s failure to move to dismiss on double jeopardy grounds was ineffective assistance	Ayotte: failure to assert a dispositive constitutional defense amounted to ineffective assistance denying meaningful adversarial testing	State: counsel researched and concluded the defenses differed; plea negotiation and strategic choices justified counsel’s conduct	Court: counsel’s erroneous conclusion about controlling law and failure to assert an available dispositive constitutional defense constituted ineffective assistance under Cronic principles

Blockburger v. United States, 284 U.S. 299 (test for whether two offenses are the same for double jeopardy purposes)
State v. Viger, 392 A.2d 1080 (Me. 1978) (the elements of theft by taking necessarily overlap with receiving stolen property)
State v. Moulton, 481 A.2d 155 (Me. 1984) (theft can be a continuing crime spanning counties)
Mayo v. State, 258 A.2d 269 (Me. 1969) (conviction for theft in one county bars prosecution for same continuing theft in another)