Daniel L. Fortune v. State of Maine
2017 ME 61
| Me. | 2017Background
- Fortune was tried in May 2010 on multiple charges, including four counts of aggravated attempted murder; his alleged accomplice, Leo Hylton, had pleaded guilty and testified at trial that he could not recall the events.
- On cross-examination Fortune highlighted parts of a letter/allocution in which Hylton appeared to accept responsibility; the State moved to admit the entire allocution under M.R. Evid. 106 and the court, over objection, allowed it and read it to the jury while Hylton was not on the stand.
- Fortune did not recall Hylton to the stand after the allocution was read; Fortune was convicted on all counts and the convictions and sentences were affirmed on direct appeal.
- Fortune filed a post-conviction petition claiming ineffective assistance of both trial and appellate counsel, asserting a Confrontation Clause violation from admission of Hylton’s allocution.
- The post-conviction court made internally inconsistent findings: it called appellate counsel’s failure to raise the Confrontation Clause issue “deficient” and said Fortune “is entitled to an appeal on that very issue,” yet denied the petition and did not find prejudice.
- The Supreme Judicial Court clarified the standard of appellate review for ineffective-assistance claims (mixed legal/factual questions) but affirmed denial of Fortune’s petition, holding appellate counsel was not ineffective because trial counsel’s handling of the issue was proper and no prejudice resulted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not raising a Confrontation Clause challenge to admission of Hylton’s allocution | Fortune: appellate counsel unreasonably failed to raise a meritorious Confrontation Clause issue on direct appeal | State: appellate counsel reasonably declined to raise the issue because trial counsel had not erred and the issue would be reviewed only for obvious error | Held: appellate counsel was not ineffective; no objectively unreasonable omission because trial counsel’s conduct was sound and no prejudice shown |
| Proper standard of appellate review for post-conviction ineffective-assistance determinations | Fortune: (implicit) apply existing clear-error review | State: (implicit) mixed review is appropriate | Held: adopt mixed approach — factual findings reviewed for clear error; legal conclusions de novo; apply intermediate approach for mixed questions depending on whether fact or law predominates |
| Whether trial counsel was ineffective in handling the Confrontation Clause issue | Fortune alleged trial counsel failed to protect his confrontation rights | State: trial counsel handled the issue appropriately (Hylton remained available for cross-examination) | Held: trial counsel was not ineffective (court below found no ineffectiveness and Fortune does not press that finding on appeal) |
| Whether any appellate error was prejudicial (Strickland prejudice prong) | Fortune: prejudice resulted from appellate counsel’s omission | State: no prejudice because the underlying trial handling was proper and no meritorious claim was lost | Held: no need to reach prejudice after finding no deficient performance; in any event, no prejudice shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
- Smith v. Robbins, 528 U.S. 259 (standard for evaluating appellate counsel’s failure to raise issues)
- State v. Fortune, 34 A.3d 1115 (Me. 2011) (opinion affirming Fortune’s convictions)
- McGowan v. State, 894 A.2d 493 (Me. 2006) (discussion of appellate standard of review for ineffective-assistance claims)
- Theriault v. State, 125 A.3d 1163 (Me. 2015) (recognizing Strickland governs state post-conviction ineffective-assistance claims)