MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2015 ME 164
Docket:   Sag-14-260
Argued:   May 13, 2015
Decided:  December 24, 2015

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



                               JED R. MIDDLETON

                                         v.

                                STATE OF MAINE

HJELM, J.

         [¶1] In 2010, after a jury trial, Jed R. Middleton was convicted in the

Superior Court (Sagadahoc County, Horton, J.) of one count of gross sexual

assault and fifteen counts of unlawful sexual contact. He later filed a petition for

post-conviction review alleging that he was deprived of his constitutional right to

effective assistance of counsel. Middleton claimed in part that trial counsel was

ineffective by failing to seek a continuance of the sentencing hearing when

Middleton was allegedly incompetent or, if he was competent, unable to exercise

his right of allocution due to his emotional state.     After a hearing, the court

(Horton, J.) concluded that Middleton had not proved a constitutional deprivation

and denied his petition. On this appeal, we affirm the judgment.
2

                                       I. BACKGROUND

        [¶2] In its judgment, the post-conviction court made the following findings

of fact, which are based on competent evidence in the record. See Heon v. State,

2007 ME 131, ¶ 5, 931 A.2d 1068.

        [¶3] In January 2010 Middleton was indicted for one count of gross sexual

assault (Class A), 17-A M.R.S.A. § 253(1)(B), (4) (Supp. 1996),1 and fifteen

counts of unlawful sexual contact (Class C), 17-A M.R.S.A. § 255(1)(C), (2)

(Supp. 1993).2 Middleton committed these offenses in the mid-1990s when the

victim was between ages seven and eleven. Throughout the case, Middleton was

represented by experienced defense counsel, Donald Lawson-Stopps. At the end

of a three-day trial held in June 2010, a jury found Middleton guilty of all sixteen

charges.

        [¶4] Following trial, the court continued sentencing pending a psychological

evaluation conducted by the State Forensic Service. The resulting report was filed,

and in September 2010 the court held a sentencing hearing.                         At the hearing,

Attorney Lawson-Stopps told the court that Middleton was “not in any emotional

    1
      Title 17-A M.R.S.A. § 253(1)(B) (Supp. 1996) has since been amended by P.L. 2001, ch. 383, § 14
(effective Jan. 31, 2003) (codified at 17-A M.R.S. § 253(1)(B) (2014)) and P.L. 2003, ch. 711, § B-2
(effective July 30, 2004) (codified at 17-A M.R.S. § 253(1)(B) (2014)), but the amendments do not affect
this appeal.
    2
      Title 17-A M.R.S.A. § 255 (Supp. 1993) was repealed and replaced by P.L. 2001, ch. 383, §§ 22-23
(effective Jan. 31, 2003) and has since been amended several times, most recently by P.L. 2011, ch. 691,
§§ A-14, A-15 (effective May 22, 2012) (codified at 17-A M.R.S. § 255-A (2014)).
                                                                                 3

condition . . . to even be able to address the [c]ourt.” Attorney Lawson-Stopps did

not request a continuance and proceeded to present a number of character

witnesses, including Middleton’s sister, who spoke of Middleton’s positive

contributions and loving relationships with friends and family members. None of

the witnesses questioned Middleton’s mental status. Attorney Lawson-Stopps then

presented an argument that the court found to be well reasoned and supported by

the law. When the court gave Middleton an opportunity to speak on his own

behalf, Attorney Lawson-Stopps stated, “I’m not sure Mr. Middleton would be

very coherent at this point.”

      [¶5] The court then sentenced Middleton on the charge of gross sexual

assault to a prison term of twenty years, with all but eleven years suspended, and

six years of probation. On each of the charges of unlawful sexual contact, the

court imposed concurrent sentences of five years to be served concurrently with

the twenty-year sentence. After pronouncing sentence, the court asked Middleton

if he understood, and Middleton responded, “No, . . . I don’t understand a thing.”

Expressing appropriate concern about this response, the court recessed the hearing

to allow Attorney Lawson-Stopps to consult with Middleton. Immediately after

the recess, Attorney Lawson-Stopps assured the court that Middleton understood
4

the sentence.3 Middleton, who was present with Attorney Lawson-Stopps, did not

express disagreement with that statement. The court then concluded the hearing.

        [¶6] After the judgment of conviction was entered, Middleton filed a motion

for new trial, see M.R. Crim. P. 33 (Tower 2014),4 which the court denied; an

application for leave to appeal sentence, see 15 M.R.S. § 2151 (2014); M.R.

App. P. 20, which the Sentence Review Panel denied; and an appeal from the

judgment itself, see 15 M.R.S. § 2115 (2014); M.R. App. P. 2, which we affirmed,

see State v. Middleton, Mem-11-141 (Sept. 29, 2011).

        [¶7] Soon before the statutory deadline, in October 2012, Middleton filed a

petition for post-conviction review, see 15 M.R.S. §§ 2121-2132 (2012),5 alleging

that Attorney Lawson-Stopps’s representation was ineffective during the pre-trial,

trial, and sentencing phases of the case.                  Regarding the sentencing hearing,

Middleton alleged that he was not competent and was unable to personally address

the court due to his emotional condition, and that Attorney Lawson-Stopps’s

representation was therefore ineffective because he did not request a continuance.

    3
      The transcript from the sentencing hearing, which is included in the post-conviction record, reveals
that when the court resumed the hearing after the recess, Attorney Lawson-Stopps told the court,
“[Middleton] understands the sentence. He understands the process. What he explained is that he had
difficulty following what you were actually doing when you were giving out numbers.”
    4
      The Maine Rules of Unified Criminal Procedure (effective Jan. 1, 2015) were not in effect at the
time of the proceedings. M.R.U. Crim. P. 1(e)(1).
    5
      Certain sections of 15 M.R.S. §§ 2121-2132 have since been amended, though the amendments are
not relevant to the present case. See, e.g., P.L. 2013, ch. 133, § 3 (effective Oct. 9, 2013) (codified at
15 M.R.S. § 2121 (2014)).
                                                                                  5

      [¶8] After holding a hearing in December 2013, the court issued a written

decision denying Middleton’s petition. Addressing the claims that focused on the

sentencing hearing, the court credited Attorney Lawson-Stopps’s testimony that

although Middleton was emotional and anxious, he never believed at any time

during the course of his representation that Middleton was incompetent. The court

rejected contrary views expressed by Middleton and his sister, describing their

post-conviction testimony as a “post hoc characterization” of Middleton’s mental

state. The court also noted that neither the presentence psychological report nor

the character witnesses who spoke at the sentencing hearing made reference to

“any present or previous lack of competence” on Middleton’s part, and that in fact

the witnesses spoke highly of Middleton and his accomplishments. Based on

Attorney Lawson-Stopps’s statement at the sentencing hearing that Middleton

would not be coherent if he addressed the court, and Middleton’s assertion that he

did not understand his sentence, the court found that Middleton “certainly . . . was

overwhelmed emotionally and confused.” The court found, however, that this did

not “necessarily indicate[] lack of competence . . . [or] ineffective assistance of

counsel.” In addition, the court stated that it was “by no means persuaded that

[Middleton] would have helped his own cause had he addressed the court. . . . If

[Middleton] was indeed too overwhelmed with emotion to speak before being

sentenced, that may have been a good thing.”
6

      [¶9]     Pursuant to 15 M.R.S. § 2131(1) (2014) and M.R. App. P. 19,

Middleton sought a certificate of probable cause to appeal from the adverse

judgment, and we gave Middleton leave to appeal on the single issue of “whether

Middleton was prejudiced by his attorney’s failure to ask for a continuance at

sentencing.”

                               II. DISCUSSION

      [¶10] The sole question presented for review is whether the post-conviction

court erred by concluding that Middleton was not deprived of effective assistance

of counsel when Attorney Lawson-Stopps did not seek a continuance of the

sentencing hearing, at which Middleton was so “overwhelmed emotionally and

confused” that he could not address the court on his own behalf.       Although

Middleton’s arguments implicate issues of competence and allocution, his ultimate

claim is ineffective assistance of counsel. We must therefore consider the former

issues through the lens of Middleton’s ineffectiveness claim and focus on

Lawson-Stopps’s decisions rather than the issues of competence and allocution in

isolation.

      [¶11] “In appeals from judgments issued in post-conviction proceedings, we

review questions of law de novo and apply a deferential standard of review to

factual findings.” Theriault v. State, 2015 ME 137, ¶ 12, --- A.3d ---. Because

Middleton had the burden of proof on his ineffectiveness claim, he must
                                                                                  7

demonstrate on this appeal that the evidence compels a contrary conclusion.

See Heon, 2007 ME 131, ¶ 8, 931 A.2d 1068.

      [¶12]    A criminal defendant is constitutionally “entitled to effective

assistance of counsel during the sentencing process.”           Francis v. State,

2007 ME 148, ¶ 4, 938 A.2d 10 (quotation marks omitted); see U.S. Const. amend.

VI; Me. Const. art. I, § 6. As we have recently reiterated, claims of ineffective

assistance are governed by the two-part test outlined in Strickland v. Washington,

466 U.S. 668 (1984). See Manley v. State, 2015 ME 117, ¶¶ 12, 18, 123 A.3d 219;

see also Theriault, 2015 ME 137, ¶ 13, --- A.3d ---. Pursuant to that test, a

petitioner bears the burden of proving both that “counsel’s representation fell

below an objective standard of reasonableness” and that the deficient

representation resulted in prejudice. Strickland, 466 U.S. at 687-88. We hold that

the post-conviction court did not err by finding that defense counsel provided

objectively reasonable assistance, and do not reach the issue of prejudice. See id.

at 697 (holding that a court need not “address both components of the inquiry if the

defendant makes an insufficient showing on one”).

      [¶13] Judicial inquiry into the effectiveness of representation is “highly

deferential.” Id. at 689. The post-conviction court must make

      every effort . . . to eliminate the distorting effects of hindsight, to
      reconstruct the circumstances of counsel’s challenged conduct, and to
      evaluate the conduct from counsel’s perspective at the time. Because
8

      of the difficulties inherent in making the evaluation, a court must
      indulge a strong presumption that counsel’s conduct falls within the
      wide range of reasonable professional assistance; that is, the defendant
      must overcome the presumption that, under the circumstances, the
      challenged action might be considered sound trial strategy.

Id. (quotation marks omitted). Applying this deferential standard, we consider in

turn Middleton’s arguments that Attorney Lawson-Stopps unreasonably infringed

on Middleton’s right to (1) be free from prosecution while legally incompetent, and

(2) speak on his own behalf before the court imposed sentence.

A.    Competency at Sentencing

      [¶14]      Middleton first argues that the evidence compelled the

post-conviction court to find that Attorney Lawson-Stopps acted unreasonably by

failing to request a continuance of sentencing to allow for a competency

evaluation.

      [¶15]    To sentence a criminal defendant while he is incompetent is a

deprivation of his right to be heard and therefore is a violation of his constitutional

right to due process. Haraden v. State, 2011 ME 113, ¶ 7, 32 A.3d 448. A defense

attorney has the initial responsibility to alert a court to a defendant’s possible

incompetence. State v. Dyer, 371 A.2d 1079, 1086 (Me. 1977). A defendant is

competent to be sentenced if he is “capable of understanding the nature and object

of the charges against him, comprehending his own condition in reference thereto,

and cooperating with counsel to conduct a defense in a rational and reasonable
                                                                                        9

manner.” Haraden, 2011 ME 113, ¶ 7, 32 A.3d 448 (quotation marks omitted).

A defendant who is emotional during sentencing may still be legally competent.

Cf. State v. Nickerson, 2013 ME 45, ¶ 9, 66 A.3d 568.

      [¶16]   Here, the evidence supports the court’s affirmative finding that

Attorney Lawson-Stopps—who the court described as having considerable

criminal defense experience—never noticed behavior at any time during the course

of the representation, including at sentencing, that caused him to believe that

Middleton was incompetent. The court further found that although Middleton was

“overwhelmed emotionally and confused” at the sentencing hearing, this condition

did not constitute a lack of competence. These findings are supported by the

court’s direct observations of Middleton, the presentence psychological report,

Attorney Lawson-Stopps’s testimony, and, inferentially, the testimony of

Middleton’s character witnesses, none of whom questioned Middleton’s

competence.

      [¶17]    Accordingly, the court did not err by rejecting Middleton’s

ineffectiveness claim based on his failure to prove that he was in fact incompetent

or that Attorney Lawson-Stopps was on notice of any suggestion of incompetency.

B.    Right of Allocution

      [¶18]     We    next   consider        Middleton’s    alternate    contention   that

Attorney Lawson-Stopps’s     failure    to     seek   a    continuance    at   sentencing
10

unreasonably deprived Middleton—as a competent defendant—of his right of

allocution.6

         [¶19] “The right of allocution allows a defendant to personally address the

court before sentencing in an attempt to mitigate punishment.” United States v.

Barnes, 948 F.2d 325, 328 (7th Cir. 1991); see also Allocution, Black’s Law

Dictionary (10th ed. 2014) (defining allocution as a defendant’s “unsworn

statement . . . to the sentencing judge or jury in which the defendant can ask for

mercy, explain his or her conduct, apologize for the crime, or say anything else in

an effort to lessen the impending sentence”); Kimberly A. Thomas, Beyond

Mitigation: Towards a Theory of Allocution, 75 Fordham L. Rev. 2641, 2643-44

(2007) (arguing that the purposes of allocution include sentence mitigation and

humanization of the defendant).

         [¶20] Here, in concluding that Attorney Lawson-Stopps made a reasonable

strategic decision to proceed with sentencing notwithstanding Middleton’s

emotional and confused state, the post-conviction court explained,




     6
      The court did not expressly find that Middleton was unable to talk meaningfully at the sentencing
hearing. In fact, the court explained that it engaged in purposeful dialogue with Middleton about whether
he understood the sentence. The court found only that “[i]f [Middleton] was indeed too overwhelmed
with emotion to speak before being sentenced, that may have been a good thing.” (emphasis added). For
purposes of our analysis, we evaluate Middleton’s claim assuming that the court’s characterization of
Middleton’s emotional condition amounted to an inability to allocute in a meaningful or functional way.
                                                                                  11

      What [Middleton] would have said at sentencing is not of record.
      Defense counsel usually and appropriately recommend that
      defendants not speak when being sentenced unless what they intend to
      say will benefit them. If [Middleton] was indeed too overwhelmed
      with emotion to speak before being sentenced, that may have been a
      good thing.

      [¶21] Although this reasoning suggests a finding that Middleton was not

prejudiced by Attorney Lawson-Stopps’s decision to proceed with sentencing, it

also is tantamount to a determination that Attorney Lawson-Stopps’s conduct fell

within the “wide range” of practice and decisions that are within the scope of

“reasonable professional assistance.”        Strickland, 466 U.S. at 689.   Because

Middleton did not move for further findings of fact, we infer that the court found

the facts necessary to support this conclusion. See State v. Dodd, 503 A.2d 1302,

1307 (Me. 1986) (stating that if there is no request for findings of fact pursuant to

M.R. Crim. P. 23(c), we will infer that the court found the facts necessary to

support its conclusion, if those findings are supported by the record); Crandall v.

State, 297 A.2d 94, 97 & n.2 (Me. 1972) (explaining that M.R. Crim. P. 23(c) and

M.R. Civ. P. 52(a) are similarly applied).

      [¶22] A defendant’s protestation of innocence can signify an affirmative

refusal to accept responsibility or express remorse, which the court is entitled to

treat as an aggravating factor at sentencing. See 17-A M.R.S. § 1252-C(2) (2014);

State v. Grindle, 2008 ME 38, ¶ 26, 942 A.2d 673. At the post-conviction hearing,
12

Middleton testified that prior to trial he told Attorney Lawson-Stopps that he

believed he was innocent—a position he maintained throughout the proceedings,

including at the post-conviction hearing. Thus, Attorney Lawson-Stopps could

have reasonably determined that Middleton, if he had allocuted, might have made a

defiant statement to the court and denied responsibility for his proven criminal

conduct, thereby damaging his interest in minimizing the sentences.

      [¶23] Defense counsel is charged with the “overriding mission of vigorous

advocacy of the defendant’s cause.” Strickland, 466 U.S. at 689. As a corollary of

this principle, defense counsel also bears the responsibility to take steps to secure

an outcome for the defendant that is favorable under the circumstances.

Cf. Roberts v. State, 2014 ME 125, ¶ 27, 103 A.3d 1031 (holding that

representation was effective because, in part, it “further[ed] the interests of the

accused”); Bucci v. United States, 662 F.3d 18, 32 (1st Cir. 2011) (holding that

representation was constitutionally reasonable when, among other things, it

“increase[ed] the defense’s chances of securing a not-guilty verdict”). Because a

continuance might have set the stage for Middleton to make a statement that could

have resulted in greater sentences than the court actually imposed, the court did not

err by concluding that Middleton received effective representation despite the fact

that Attorney Lawson-Stopps did not seek a continuance.
                                                                                                    13

       [¶24] Middleton further argues that irrespective of whether his allocution

statement might have prompted the court to impose greater sentences,

Attorney Lawson-Stopps’s failure to ensure Middleton’s opportunity to address the

court was inherently unreasonable because the right of allocution is constitutional

in magnitude and “personal” to him. This argument fails for two reasons.

       [¶25]     First, it is not at all clear that the opportunity to allocute has

constitutional roots. In Hill v. United States, 368 U.S. 424, 425-28 (1962), the

United States Supreme Court held that a sentencing court’s failure to provide a

criminal defendant with the opportunity to address the court personally at

sentencing, though a violation of the Federal Rules of Criminal Procedure,

see Fed. R. Crim. P. 32(i)(4)(A)(ii),7 does not violate the defendant’s federal

constitutional rights.8         Further, most federal circuit courts have held that

“a defendant’s right to a sentencing allocution is a matter of criminal procedure

and not a constitutional right.”              United States v. Li, 115 F.3d 125, 132

(2d Cir. 1997); accord, e.g., United States v. Hoffman, 707 F.3d 929, 937

   7
      Hill discusses Fed. R. Crim. P. 32(a), which has since been restyled and recodified at Fed. R.
Crim. P. 32(i)(4)(A)(ii).
   8
       The Hill Court reserved the question whether the denial of allocution would amount to a
constitutional due process violation if certain “aggravating circumstances” were present—namely, if the
court were “misinformed or uninformed as to any relevant circumstances” or affirmatively denied the
criminal defendant’s express request to speak. See Hill v. United States, 368 U.S. 424, 429 (1962);
accord McGautha v. California, 402 U.S. 183, 218 & n.22 (1971), vacated on other grounds sub nom.,
Crampton v. Ohio, 408 U.S. 941 (1972). These circumstances were not present here, and Middleton does
not argue that they were.
14

(8th Cir. 2013); United States v. Smith, 705 F.3d 1268, 1274 (10th Cir. 2013);

United States v. Leavitt, 478 F.2d 1101, 1104 (1st Cir. 1973). See generally State

v. Abdullah, 348 P.3d 1, 90-94 (Idaho 2015) (surveying the right of allocution as

explicated in federal and state courts).

         [¶26] We have been more explicit in our discussion of Maine constitutional

jurisprudence, stating in dictum that “no provision in the constitution . . . in this

state . . . creates” a right of allocution.9              Brine v. State, 160 Me. 401, 403,

205 A.2d 12, 13 (1964). In a more recent case, we discussed allocution as it relates

to article I, section 6 of the Maine Constitution, which we concluded protects a

defendant’s “right to be heard by himself and his counsel, or either, at his election”

at a sentencing hearing. See Dyer, 371 A.2d at 1085 (quotation marks omitted).

We construed that constitutional provision to require that a defendant be mentally

competent at sentencing so that he can “cooperate with [defense counsel] for the

presentation of a meaningful allocution to the court.” Id. at 1086. Dyer, however,

did not directly address whether sentencing a defendant who, like Middleton, is

competent but nevertheless unable to meaningfully allocute would violate that



     9
      In Brine, we also stated in dictum that no “statute or rule of court in this state” creates a right of
allocution. Brine v. State, 160 Me. 401, 403, 205 A.2d 12, 13 (1964). The case was decided in 1964,
however, which was one year before the Maine Rules of Criminal Procedure were adopted to recognize,
among other things, a right of allocution. See M.R. Crim. P. 32(a)(2); M.R.U. Crim. P. 32(a)(2)
& introductory note. Therefore, the statement in Brine that no Maine court rule creates such a right is no
longer true.
                                                                                                      15

defendant’s constitutional rights. See id. at 1084-86. Instead, our precedents

suggest only that the right of allocution stems from the common law and from

Rule 32 of the Maine Rules of Criminal Procedure.10 See, e.g., State v. Chesnel,

358 A.2d 381, 383 (Me. 1976) (suggesting that allocution is a matter of criminal

procedure); Alexander v. Sharpe, 245 A.2d 279, 286-87 (Me. 1968) (same); Brine,

160 Me. at 403, 205 A.2d at 13 (discussing common law rationales for allocution).

        [¶27]     Second, even if Middleton’s right of allocution is constitutional,

representation by counsel that results in the forfeiture of a constitutional right does

not inevitably lead to the conclusion that the representation was ineffective.

Ayotte v. State, 2015 ME 158, ¶ 25, --- A.3d --- (“In some circumstances, the

decisions of counsel that result in a forfeiture of an accused’s constitutional rights




   10
       Rule 32(a)(2) is identical in both the Maine Rules of Criminal Procedure, which were in effect at
the time of the sentencing hearing, and the Maine Rules of Unified Criminal Procedure, which became
effective on January 1, 2015. That rule provides:

        Before imposing sentence on a Class C or higher crime, the court shall address the
        defendant personally and inquire if the defendant desires to be heard prior to the
        imposition of a sentence. . . . The defendant may be heard personally or by counsel or
        both. Failure of the court to so address the defendant shall not affect the legality of the
        sentence unless the defendant shows that he or she has been prejudiced thereby.

M.R.U. Crim. P. 32(a)(2); M.R. Crim. P. 32(a)(2). Middleton does not challenge the court’s compliance
with Rule 32 during the sentencing hearing, when it addressed Middleton personally and invited him to
speak. Although defense counsel responded instead of Middleton, the interchange fulfilled the
requirement of the rule, which states that “[t]he defendant may be heard personally or by counsel or
both.” Id. (emphasis added). But see Green v. United States, 365 U.S. 301, 304 (1961) (holding that
under Rule 32 of the Federal Rules of Criminal Procedure, the right of allocution is personal to the
defendant, and is not satisfied by affording counsel an opportunity to speak on the defendant’s behalf).
16

are not tantamount to ineffectiveness.”);11 see also Roberts, 2014 ME 125, ¶ 27,

103 A.3d 1031. In Roberts, for example, we affirmed the trial court’s finding of

effective representation even though counsel requested that portions of jury

selection be conducted in chambers, thereby intruding into the accused’s Sixth

Amendment right to a public trial, because that process promoted the goal of

obtaining a fair and impartial jury and therefore was in the accused’s best interests.

2014 ME 125, ¶ 27, 103 A.3d 1031.                       We reasoned that although “criminal

defendants are entitled to competent representation, the Constitution does not

ensure that defense counsel will recognize and raise every conceivable

constitutional claim . . . particularly [when] . . . pressing a constitutional claim is

unlikely to further the interests of the accused.” Id. (alteration omitted) (emphasis

added) (quotation marks omitted). Here, even though Middleton was unable to

personally address the court in allocution, the court did not err by finding that

Attorney Lawson-Stopps’s decision to proceed with sentencing was objectively

reasonable, because a continuance might have allowed Middleton at a later date to

make a statement harmful to his liberty interests.



     11
       In Ayotte, we held that trial counsel’s representation was necessarily ineffective because, due to a
misunderstanding of the law, counsel did not assert a defense that would have foreclosed the criminal
prosecution altogether. Ayotte v. State, 2015 ME 158, ¶ 25, --- A.3d ---. Here, on the other hand, any
inability of Middleton to address the court did not demonstrate ineffective representation by
Attorney Lawson-Stopps because, as the court suggested in its findings, he could have reasonably
determined that proceeding with sentencing could work to Middleton’s benefit. See supra ¶¶ 20-22.
                                                                                                        17

        [¶28] Therefore, we conclude that the evidence did not compel the court to

find that Middleton was deprived of constitutionally effective assistance when

Attorney Lawson-Stopps proceeded with, rather than seeking to continue, the

sentencing hearing notwithstanding Middleton’s confused and emotional state.12

        The entry is:

                           Judgment affirmed.


On the briefs:

        Thomas J. Connolly, Esq., Portland, for appellant Jed R.
        Middleton

        Geoffrey A. Rushlau, District Attorney, and Patricia A. Mador,
        Asst. Dist. Atty., Office of the District Attorney, Bath, for
        appellee State of Maine

At oral argument:

        Thomas J. Connolly, Esq., for appellant Jed R. Middleton

        Patricia A. Mador, Asst. Dist. Atty., for appellee State of Maine

Sagadahoc County Superior Court docket number CR-2012-148
FOR CLERK REFERENCE ONLY


   12
      Although Middleton also argues that Attorney Lawson-Stopps should have requested a continuance
because of his alleged failure to inform Middleton about the opportunity to allocute or otherwise prepare
him for the sentencing hearing, this argument fails for the same reasons. When we infer factual findings
to support the court’s ultimate conclusion that Middleton did not prove ineffectiveness, see State v. Dodd,
503 A.2d 1302, 1307 (Me. 1986), the record supports a finding that Attorney Lawson-Stopps could have
reasonably determined that a delay in sentencing to help Middleton prepare an allocution statement would
have resulted in a worse outcome, because even with more information or time to prepare, Middleton was
very unlikely to express remorse. Therefore, the evidence did not compel the post-conviction court to
find that defense counsel acted unreasonably by failing to seek a continuance of sentencing so that he
could further prepare Middleton to make a damaging statement.
