158 A.3d 512
Me.2017Background
- Fortune was indicted on multiple felony counts (including four counts of aggravated attempted murder) and tried in May 2010; his alleged accomplice, Leo Hylton, testified he did not recall the events but had earlier written and read a sentencing allocution/letter expressing responsibility and remorse.
- The State moved to admit Hylton’s full sentencing allocution under M.R. Evid. 106 after defense cross‑examination highlighted portions that could be misleading; the court admitted and read the allocution to the jury while Hylton was not on the stand.
- Fortune was convicted and the convictions and sentences were affirmed on direct appeal (State v. Fortune, 2011 ME 125, 34 A.3d 1115).
- Fortune filed a post‑conviction petition asserting, inter alia, ineffective assistance of appellate counsel for failing to raise a Confrontation Clause challenge to admission of Hylton’s allocution; the post‑conviction court’s written disposition contained inconsistent language about counsel’s performance and ultimately denied relief.
- On appeal from the post‑conviction judgment, the Law Court clarified its standard of review for ineffective‑assistance claims in post‑conviction appeals (review legal conclusions de novo; factual findings for clear error) and affirmed the denial of relief, holding appellate counsel was not ineffective.
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 was deficient for failing to raise the Confrontation Clause issue on direct appeal and this prejudiced the appeal | State: trial counsel handled the issue adequately, Hylton remained available for cross‑examination, and appellate counsel reasonably omitted the claim; no prejudice shown | Appellate counsel was not ineffective; petition denied |
| Proper standard of appellate review for post‑conviction ineffective‑assistance claims | Fortune: (implicit) seek de novo review of legal issues | State: (implicit) defer to post‑conviction factfinding | Court announced mixed standard: legal conclusions reviewed de novo; factual findings reviewed for clear error; apply mixture depending on whether issue is law‑ or fact‑dominated |
| Whether trial counsel was ineffective in handling Confrontation Clause issue at trial | Fortune alleged trial counsel ineffective (but did not pursue on appeal here) | State: trial counsel acted reasonably; Hylton’s availability undercut claim | Post‑conviction court found trial counsel not ineffective; Fortune did not challenge that finding on appeal |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong test for ineffective assistance of counsel)
- 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) (direct appeal affirming Fortune’s convictions)
- United States v. Manon, 608 F.3d 126 (1st Cir. 2010) (discusses bifurcated review of mixed questions of law and fact in ineffective‑assistance contexts)
- Theriault v. State, 125 A.3d 1163 (Me. 2015) (recognizes Strickland governs state post‑conviction ineffectiveness claims)