Opinion
10-CR-570
12-06-2011
Frederick Grace, Petitioner v. State of Maine, Respondent
DECISION AND ORDER
This matter was heard on December 1, 2011, on Petitioner's Petition for Postconviction review. Attorney David Paris represented the Petitioner. Assistant District Attorney Paul Rucha represented the State.
In this action, Petitioner seeks relief from the sentence imposed upon his plea to two counts of Unlawful Sexual Contact (Class B). On March 2, 2010, Petitioner entered guilty pleas to both charges. On April 26, 2010, the Court sentenced Petitioner to 7 years with all but 2 years suspended and 6 years of probation on Count I, and 2 years concurrent on Count II.
Petitioner maintains that post-conviction relief is warranted because he received ineffective assistance of counsel. In particular, Petitioner argues that his attorney did not file an appeal from the sentence despite Petitioner's request that he do so.
Discussion
Whether Petitioner received ineffective assistance of counsel requires a two-part inquiry by the Court. First, the Court must assess "whether there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance ... below what might be expected from an ordinary fallible attorney ...." Francis v. State, 2007 ME 148, ¶ 4 (quoting, McGowan v. State, 2006 ME 16, ¶ 11, 894 A.2d 493, 496-97). The Court then is required to determine "whether the attorney's performance 'likely deprived the defendant of an otherwise available substantial ground or defense' or 'likely affected the outcome of the [proceeding]." Id.
In this case, Petitioner contends that his counsel's performance was below that which is expected of an "ordinary fallible attorney" because his counsel did not file an appeal. More specifically, Petitioner argues that although he informed his counsel of his desire to appeal within the pertinent appeal period, his counsel did not file the appeal.
Petitioner would satisfy his burden if he could establish that he asked his attorney to file an appeal, and that his attorney failed to make the filing. That is, the failure to file an appeal upon request would fall below conduct that is expected of an "ordinary fallible attorney." The issue is thus whether Petitioner has proven that he asked his attorney to file the appeal.
The record establishes that in the days following the imposition of the sentence, Petitioner and his attorney discussed the cost and prospects of an appeal. Petitioner maintains that after their discussions about the cost of the appeal, he contacted his attorney's office to authorize the filing of an appeal. According to Petitioner, when he could not reach his attorney directly, he informed his attorney's assistant that he wanted to appeal.
Petitioner's testimony is, however, contradicted by the testimony of his attorney, and is inconsistent with a letter that he forwarded to his attorney within a month of his incarceration. Petitioner's attorney recounts that Petitioner, during multiple conversations after sentencing, concluded that he did not want to file an appeal. When discussing a possible appeal, Petitioner's attorney advised Petitioner that because an appeal likely would be unsuccessful, Petitioner should use his resources to preserve his home and other belongings, which were understandably of great concern to Petitioner. Petitioner's attorney testified that most of his post-sentence communications with Petitioner were not focused on a possible appeal, but involved Petitioner's request for a further stay of execution of the sentence, which request was granted, and Petitioner's concerns about the disclosure of his personal information.
Not insignificantly, the only written communication between Petitioner and his attorney following Petitioner's incarceration was Petitioner's letter dated June 17, 2010, in which letter Petitioner expressed his disappointment with his attorney in connection with the disclosure of Petitioner's personal information. In the letter, Petitioner expressed his unhappiness with his attorney's lack of response to an inquiry about the disclosure of personal information, but did not question his attorney's failure to file an appeal. Had Petitioner wanted to appeal, and had his attorney failed to file an appeal, Petitioner presumably would have either raised the issue in his June 17 letter, or written subsequently to express his concerns about the lack of an appeal. The letter is consistent with the testimony of Petitioner's attorney that the multiple communications after the sentencing focused not on an appeal, but on the disclosure of Plaintiff's personal information.
Because Petitioner's contemporaneous writing is consistent with the testimony of his attorney, and because Petitioner has failed to produce any evidence to coroborate that he instructed his attorney to file an appeal, Petitioner has failed to establish that his attorney's conduct fell below that of an "ordinary fallible attorney."
Conclusion
Based on the foregoing analysis, the Court denies Petitioner's request for postconviction relief.
The Clerk shall incorporate this Decision and Order into the docket by reference.