MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	47	
Docket:	   And-18-84	
Argued:	   February	4,	2019	
Decided:	  March	28,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  BARTOLO	P.	FORD	
                                          	
                                         v.	
                                          	
                                  STATE	OF	MAINE	
	
	
JABAR,	J.	

      [¶1]	 	 Bartolo	 P.	 Ford	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Androscoggin	 County,	 Marden,	 J.)	 denying	 in	 part	 and	 granting	 in	 part	 his	

petition	 for	 post-conviction	 review.	 	 Ford	 argues	 that	 the	 court	 erred	 by	

denying	 his	 requested	 relief	 concerning	 his	 felony	 convictions	 despite	 its	

determination	that	he	had	established	that	his	trial	counsel	was	ineffective.		We	

vacate	the	court’s	judgment	and	remand.	

                                   I.		BACKGROUND	

      [¶2]	 	 In	 2011,	 Ford	 filed	 a	 petition	 for	 post-conviction	 review	 alleging	

ineffective	assistance	of	counsel	on	multiple	grounds.		In	its	judgment	granting	

in	 part	 and	 denying	 in	 part	 Ford’s	 petition,	 the	 court	 made	 the	 following	
2	

findings	of	fact,	all	of	which	are	supported	by	competent	evidence	in	the	record.		

See	Middleton	v.	State,	2015	ME	164,	¶	2,	129	A.3d	962.	

         [¶3]		In	2008,	Ford	was	indicted	on	one	count	of	aggravated	attempted	

murder	(Class	A),	17-A	M.R.S.	§	152-A(1)(F)	(2018),	two	counts	of	aggravated	

criminal	 mischief	 (Class	 C),	 17-A	 M.R.S.	 §	 805(1)(C)	 (2018),	 two	 counts	 of	

reckless	 conduct	 with	 a	 dangerous	 weapon	 (Class	 C),	 17-A	 M.R.S.	 §§	 211(1),	

1252(4)	(2018),	one	count	of	eluding	an	officer	(Class	C),	29-A	M.R.S.	§	2414(3)	

(2018),	 and	 one	 count	 of	 theft	 by	 unauthorized	 taking	 or	 transfer	 (Class	 E),	

17-A	M.R.S.	§	353(1)(A)	(2018).1		Following	a	three-day	jury	trial	in	2010,	Ford	

was	convicted	on	 all	counts	and	the	trial	court	(Marden,	J.)	sentenced	him	to	

twenty	years’	imprisonment,	with	all	but	nine	years	suspended,	followed	by	six	

years’	probation.		

         [¶4]	 	 We	 have	 previously	 summarized	 the	 facts	 leading	 to	 Ford’s	

conviction	and	the	pertinent	testimony	from	his	trial:	

         On	the	evening	of	September	15,	2008,	Ford	led	the	Auburn	police	
         department	 on	 a	 high-speed	 chase.	 	 The	 chase	 began	 when	 Ford	
         sped	off	after	a	police	officer,	suspecting	that	the	concrete	well	tiles	
         in	the	bed	of	Ford’s	truck	had	been	stolen,	approached	the	vehicle	
         and	questioned	him.		It	ended	when	Ford	crashed	his	F-550	dump	
         truck	into	a	stream.	

     1		Ford	was	also	indicted	on	four	counts	of	theft	by	receiving	stolen	property	(Class	C),	17-A	M.R.S.	

§	 359(1)(B)(4)	 (2018),	 and	 one	 count	 of	 theft	 by	 receiving	 stolen	property	 (Class	 B),	17-A	 M.R.S.	
§	359(1)(B)(1)	(2018),	but	those	charges	were	severed	and	later	dismissed.			
                                                                                         3	

      	
      During	 the	 chase,	 Ford	 repeatedly	 used	 his	 truck	 to	 ram	 the	
      pursuing	police	cruisers.		Two	cruisers	sustained	serious	damage,	
      and	 one	 officer	 narrowly	 escaped	 being	 struck	 by	 Ford’s	 dump	
      truck	 by	 scrambling	 up	 an	 embankment	 moments	 before	 Ford	
      drove	his	truck	into	the	officer’s	cruiser.		When	he	refused	to	stop,	
      Ford	was	fired	upon	by	an	Auburn	police	officer;	the	bullet	hit	and	
      shattered	Ford’s	hip.		Ford	ultimately	surrendered	to	a	Maine	State	
      Police	trooper	after	crashing	his	dump	truck	into	a	small	stream.		
      He	was	wet,	disheveled,	and	had	blood	running	down	his	leg.	
      	
      Ford	argued	that	he	suffered	from	a	mental	abnormality	as	defined	
      by	 17-A	 M.R.S.	 §	 38	 (2012).	 	 As	 evidence	 of	 his	 condition,	 he	
      point[ed]	to	post-traumatic	stress	disorder,	which	he	attribute[d]	
      to	trauma	suffered	in	the	military	during	Operation	Desert	Storm,	
      and	injuries	sustained	in	a	car	accident.		Ford	also	argued	that	the	
      prescription	 medications	 he	 consumes	 to	 treat	 his	 PTSD	
      contributed	to	his	mental	abnormality.		Much	of	this	evidence	was	
      presented	through	expert	testimony.		Dr.	John	Dorn,	a	psychiatrist,	
      concluded	 that	 Ford	 was	 “attacking	 the	 enemy	 as	 he	 saw	 it”	
      because	 his	 PTSD	 caused	 him	 to	 react	 to	 the	 stimuli	 of	 flashing	
      lights	and	sirens.		Dr.	Dorn	determined	that	the	combination	of	the	
      drugs	Ford	took	that	day,	his	concussion	from	the	car	accident,	and	
      his	 PTSD	 triggered	 a	 flashback	 state	 that	 could	 have	 lasted	 for	
      several	hours.	
      	
      Dr.	Carlyle	Voss,	also	a	psychiatrist,	testified	for	the	State	that	some	
      of	 Ford’s	 reports	 made	 his	 defense	 of	 abnormal	 condition	 of	 the	
      mind	 plausible,	 but	 that	 he	 also	 believed	 Ford	 was	 exaggerating.		
      Ultimately,	Dr.	Voss	concluded	that	Ford	was	not	out	of	touch	with	
      reality	that	night.		Ford	did	not	testify.	
	
State	v.	Ford,	2013	ME	96,	¶¶	2-5,	82	A.3d	75.	

	     [¶5]	 	 In	 2011,	 Ford	 filed	 a	 petition	 for	 post-conviction	 review,	 alleging	

ineffective	assistance	of	trial	counsel	for	(1)	refusing	to	permit	Ford	to	testify,	
4	

(2)	coercing	Ford	to	reject	a	plea	agreement,	(3)	failing	to	file	a	notice	of	appeal,	

(4)	 failing	 to	 adequately	 investigate	 the	 case,	 and	 (5)	 failing	 to	 request	 a	

self-defense	 jury	 instruction.	 	 The	 Superior	 Court	 (Marden,	 J.)	 granted	 Ford’s	

petition	solely	as	to	the	failure	to	file	a	notice	of	appeal,	reinstating	Ford’s	right	

to	appeal	his	conviction,	but	deferred	action	on	the	remaining	grounds	asserted	

pending	the	outcome	of	the	appeal.		See	15	M.R.S.	§	2130	(2018).			

      [¶6]		In	his	appeal,	Ford	argued	that	the	trial	court	had	erred	by	failing	to	

instruct	the	jury	on	self-defense	and	voluntary	intoxication,	and	by	not	ensuring	

that	 Ford	 had	 knowingly,	 voluntarily,	 and	 intelligently	 waived	 his	 right	 to	

testify.		State	v.	Ford,	2013	ME	96,	¶¶	11,	18,	82	A.3d	75.		We	affirmed	Ford’s	

conviction.		Id.	¶¶	17,	23.		In	particular,	we	rejected	Ford’s	assertion	relating	to	

his	apparent	decision	not	to	testify	at	trial	because	the	record	then	before	us	

did	not	demonstrate	a	problem.		Id.	¶¶	18-23.		Rather,	we	noted	that	a	proper	

challenge	to	the	role	that	counsel	played	in	Ford’s	failure	to	testify	would	need	

to	be	developed	in	a	post-conviction	proceeding.		Id.	¶	21	n.6.	

	     [¶7]	 	 After	 we	 affirmed	 the	 convictions,	 the	 Superior	 Court	 held	 a	

three-day	hearing	on	Ford’s	petition	for	post-conviction	review.		Following	the	

hearing,	 the	 court	 found	 that	 Ford	 had	 been	 denied	 his	 right	 to	 effective	

assistance	of	counsel	by	his	trial	counsel’s	refusal	to	discuss,	“in	any	manner,	
                                                                                          5	

his	 right	 to	 testify.”	 	 The	 court	 concluded,	 however,	 that	 the	 trial	 counsel’s	

actions	 prejudiced	 Ford	 only	 with	 regard	 to	 his	 conviction	 for	 misdemeanor	

theft	 by	 unauthorized	 taking;	 it	 thus	 vacated	 that	 conviction	 and	 entered	 a	

judgment	 of	 not	 guilty.	 	 The	 court	 denied	 Ford’s	 petition	 as	 to	 his	 remaining	

felony	 convictions	 based	 upon	 the	 deprivation	 of	 his	 right	 to	 testify—

aggravated	attempted	murder,	aggravated	criminal	mischief,	reckless	conduct,	

eluding	a	police	officer—and	all	other	stated	grounds	for	relief.			

	      [¶8]	 	 Ford	 sought	 a	 certificate	 of	 probable	 cause	 to	 appeal	 the	 court’s	

denial	 of	 his	 petition	 for	 post-conviction	 review.	 	 See	 15	 M.R.S.	 §	 2131(1)	

(2018);	M.R.	App.	P.	19(a)(2)(F).		We	granted	the	certificate	of	probable	cause	

limited	 to	 the	 question	 of	 “whether	 the	 court	 erred	 in	 denying	 that	 part	 of	

Ford’s	 petition	 for	 post-conviction	 relief	 based	 on	 the	 alleged	 deprivation	 by	

trial	 counsel	 of	 his	 right	 to	 testify,”	 and	 therefore	 do	 not	 discuss	 the	 other	

grounds	for	relief	that	Ford	raised	in	his	petition.		See	M.R.	App.	P.	19(f).		The	

State	does	not	appeal	or	otherwise	challenge	the	court’s	conclusion	that	Ford	

was	denied	effective	assistance	of	counsel,	or	that,	in	regard	to	the	conviction	

for	theft	by	unauthorized	taking,	Ford	was	prejudiced.			
6	

                                  II.		DISCUSSION	

	     [¶9]	 	 Ford	 argues	 that	 the	 post-conviction	 court	 erred	 by	 failing	 to	

determine	 that	 his	 felony	 convictions	 also	 occurred	 as	 a	 result	 of	 a	

“fundamentally	unfair	trial”	caused	by	the	deprivation	of	his	right	to	testify	by	

his	trial	counsel.		We	review	the	“post-conviction	court’s	legal	conclusions	de	

novo	and	its	factual	findings	for	clear	error.”		Fortune	v.	State,	2017	ME	61,	¶	12,	

158	A.3d	512.	

      [¶10]	 	 “The	 Sixth	 Amendment	 to	 the	 United	 States	 Constitution	 and	

article	I,	section	6	of	the	Maine	Constitution	ensure	that	a	criminal	defendant	is	

entitled	to	receive	the	effective	assistance	of	an	attorney.”		McGowan	v.	State,	

2006	ME	16,	¶	9,	894	A.2d	493;	see	also	McMann	v.	Richardson,	397	U.S.	759,	

771	n.14	(1970)	(“[T]he	right	to	counsel	is	the	right	to	the	effective	assistance	

of	 counsel.”).	 	 “The	 primary	 purpose	 of	 the	 effective	 assistance	 of	 counsel	

requirement	is	to	ensure	a	fair	trial.”		McGowan,	2006	ME	16,	¶	9,	894	A.2d	493.			

      [¶11]		In	approaching	a	claim	of	ineffective	assistance	of	counsel,	we	have	

recognized	 that	 Strickland	 v.	 Washington,	 466	 U.S.	 668	 (1984),	 provides	 the	

appropriate	standard.		See	Fortune,	2017	ME	61,	¶	9,	158	A.3d	512.		To	prevail	

on	a	claim	of	ineffective	assistance	of	counsel,	a	petitioner	must	demonstrate	

(1)	 “that	 counsel’s	 representation	 fell	 below	 an	 objective	 standard	 of	
                                                                                       7	

reasonableness”	and	(2)	that	the	“errors	of	counsel	.	.	.	actually	had	an	adverse	

effect	on	the	defense.”		Strickland,	466	U.S.	at	688,	693.		“The	burden	is	on	[the	

petitioner]	to	prove	both	prongs.”		McGowan,	2006	ME	16,	¶	12,	894	A.2d	493.			

A.	    Deficient	Performance	

	      [¶12]		As	the	Superior	Court	correctly	found,	trial	counsel	deprived	Ford	

of	his	constitutional	right	to	testify.		See	State	v.	Tuplin,	2006	ME	83,	¶¶	10-11,	

901	A.2d	792	(“[T]he	federal	constitution	is	[]	recognized	as	guaranteeing	the	

right	to	testify	.	.	.	.”).		The	post-conviction	court	found	that	Ford’s	trial	counsel	

failed	to	prepare	Ford	to	testify,	failed	to	inform	Ford	of	his	right	to	testify,	and	

in	fact	prevented	Ford	from	testifying	by	stating,	in	no	uncertain	terms,	“[t]here	

is	no	f***ing	way	you’re	going	to	testify.”		See	State	v.	Ford,	2013	ME	96,	¶	21,	

82	A.3d	75	(“It	is	a	lawyer’s	duty	to	advise	his	or	her	client	of	all	rights,	including	

the	right	to	testify.”).				

	      [¶13]	 	 Given	 this	 deprivation,	 the	 post-conviction	 court	 appropriately	

determined	 that	 Ford	 met	 his	 burden	 as	 to	 the	 first	 prong	 of	 the	 Strickland	

analysis.		See	Owens	v.	United	States,	483	F.3d	48,	58	(1st	Cir.	2007)	(“[F]ailure	

to	inform	a	defendant	of	his	right	to	testify	constitutes	performance	outside	of	

an	 objective	 standard	 of	 reasonable	 competence,	 and	 []	 such	 performance	 is	

constitutionally	 deficient.”),	 overruled	 on	 other	 grounds	 by	 Weaver	 v.	
8	

Massachusetts,	 ---	 U.S.	 ---,	 137	 S.	 Ct.	 1899,	 1907-13	 (2017);	 United	 States	 v.	

Teague,	953	F.2d	1525,	1534	(11th	Cir.	1992)	(“[I]f	defense	counsel	refused	to	

accept	the	defendant’s	decision	to	testify	and	would	not	call	him	to	the	stand,	

counsel	would	have	acted	unethically	to	prevent	the	defendant	from	exercising	

his	fundamental	constitutional	right	to	testify.”).			

B.	    Actual	Prejudice	

	      [¶14]	 	 To	 establish	 that	 he	 was	 prejudiced	 by	 trial	 counsel’s	 deficient	

performance,	Ford	“must	show	that	there	is	a	reasonable	probability	that,	but	

for	 counsel’s	 unprofessional	 errors,	 the	 result	 of	 the	 proceeding	 would	 have	

been	different.		A	reasonable	probability	is	a	probability	sufficient	to	undermine	

confidence	in	the	outcome.”		Strickland,	466	U.S.	at	694.	

	      [¶15]		The	post-conviction	court	concluded	that,	had	Ford	been	allowed	

to	testify,	there	is	a	reasonable	probability	that	the	jury	could	have	determined	

that	he	was	not	guilty	of	theft.		The	court	based	this	on	a	receipt	for	the	well	

tiles	 and	 the	 accompanying	 testimony	 that	 Ford	 alleges	 he	 would	 have	

presented.	 	 As	 to	 the	 remaining	 convictions,	 the	 court	 concluded	 that	 Ford	

failed	 to	 show	 any	 actual	 prejudice.	 	 We	 disagree.	 	 Ford’s	 theft	 conviction	 is	

inextricably	 intertwined	 with	 the	 other	 charges,	 and	 the	 prejudice	 that	 Ford	

suffered	also	affected	his	other	convictions.			
                                                                                         9	

          [¶16]	 	 At	 Ford’s	 trial,	 the	 jury	 was	 presented	 with	 two	 competing	

explanations	of	the	events	that	occurred	on	the	night	of	September	15,	2008.		

Under	 both	 theories,	 the	 pivotal	 issue	 was	 Ford’s	 state	 of	 mind.	 	 The	 State’s	

theory	 was	 that	 Ford	 was	 a	 thief	 who	was	 attempting	 to	 avoid	 being	 caught.		

Ford’s	version	of	events	began	with	his	claim	that	he	was	not	a	thief,	and	that,	

in	response	to	an	unwarranted	confrontation	with	the	police,	he	was	reliving	

traumatic	experiences	from	his	military	service.		According	to	Ford,	when	he	

was	confronted	by	the	police	with	sirens	and	flashing	lights,	his	PTSD	caused	a	

“flashback”	that	made	him	believe	that	he	was	back	in	a	combat	zone.			

          [¶17]		Ford	asserts	that	had	he	been	able	to	exercise	his	right	to	testify,	

he	would	have	told	the	jury	that	he	was	not	stealing	the	well	tiles;	he	believed	

he	 had	 permission	 to	 take	 them.	 	 Further,	 he	 would	 have	 detailed	 the	

experiences	that	he	faced	in	the	military	and	how	they	have	severely	affected	

him.			

          [¶18]		When	“the	defendant	takes	the	stand	.	.	.	his	demeanor	can	have	a	

great	bearing	on	his	credibility	and	persuasiveness,	and	on	the	degree	to	which	

he	evokes	sympathy.”		Riggins	v.	Nevada,	504	U.S.	127,	142	(1992)	(Kennedy,	J.,	

concurring).	 	 “[T]he	 defendant’s	 behavior,	 manner,	 facial	 expressions,	 and	

emotional	responses,	or	their	absence,	combine	to	make	an	overall	impression	
10	

on	 the	 trier	 of	 fact,	 an	 impression	 that	 can	 have	 a	 powerful	 influence	 on	 the	

outcome	of	the	trial.”		Id.	

	      [¶19]		The	court	acknowledged	that	Ford’s	testimony	could	have	altered	

the	 outcome	 of	 the	 theft	 conviction,	 and	 the	 State	 does	 not	 challenge	 that	

determination.		If	Ford	did	not	believe	that	he	was	stealing	the	well	tiles,	then	

there	would	have	been	no	reason	for	Ford	to	try	to	avoid	being	caught.		Without	

the	theft,	the	State’s	explanation	for	Ford’s	actions	is	less	plausible.		Although	

“motive”	is	not	an	element	of	the	charges	at	issue	in	the	case,	the	State	premised	

its	 prosecution	 on	 the	 theory	 that	 Ford	 was	 fleeing	 from	 an	 arrest.	 	 Because	

Ford	was	prevented	from	testifying,	the	jury	did	not	hear	crucial	testimony	that	

would	have	borne	directly	on	the	pivotal	issue	in	this	case—whether	Ford	was	

suffering	from	an	abnormal	state	of	mind.		See	Ford,	2013	ME	96,	¶	4,	82	A.3d	

75	(“At	trial,	Ford	 argued	that	he	suffered	from	 a	mental	abnormality	.	.	.	.”);	

Owens,	483	F.3d	at	59	(“A	defendant’s	testimony	could	be	crucial	in	any	trial,	

and	it	could	be	difficult	for	us	to	determine	whether	or	not	a	jury	would	have	

found	his	testimony	credible.”).				

	      [¶20]		The	standard	of	review	on	an	appeal	from	a	judgment	denying	a	

petition	for	insufficient	evidence	is	a	high	one—the	petitioner	must	establish	

that	the	evidence	compelled	the	court	to	find	that	he	had	proved	entitlement	to	
                                                                                                                    11	

post-conviction	relief.		See	Middleton,	2015	ME	164,	¶	11,	129	A.3d	962.		This	is	

one	 of	 those	 cases	 where	 the	 petitioner	 has	 done	 just	 that.	 	 The	 record	

establishes	that	Ford	was	prejudiced	in	regards	to	his	convictions	on	all	counts	

by	the	deficient	performance	of	his	trial	counsel,	and	but	for	the	deprivation	of	

Ford’s	right	to	testify,	there	is	a	reasonable	probability	that	“the	result	of	the	

proceeding	would	have	been	different.”2		Strickland,	466	U.S.	at	694.			

                                              III.		CONCLUSION	

	        [¶21]		The	court	erred	when	it	denied	Ford’s	petition	for	post-conviction	

relief	as	to	his	felony	convictions	given	its	determination	that	Ford	had	proved	

ineffective	 assistance	 of	 counsel	 for	 the	 misdemeanor	 charge.	 	 Ford’s	 trial	

counsel	deprived	him	of	his	constitutional	right	to	testify,	constituting	deficient	

performance	 outside	 an	 objective	 standard	 of	 reasonableness.	 	 As	 a	 result	 of	



    2	 	 Ford	 also	 argues	 that	 a	 deprivation	 of	 the	 right	 to	 testify	 constitutes	 a	 structural	 error	 that	

entitles	him	to	an	automatic	reversal	of	his	convictions	without	any	showing	of	actual	prejudice.		See	
McCoy	 v.	 Louisiana,	 ---	 U.S.	 ---,	 138	 S.	 Ct.	 1500,	 1511	 (2018)	 (stating	 that	 the	 deprivation	 of	 a	
defendant’s	right	to	self-representation	is	a	structural	error);	McKaskle	v.	Wiggins,	465	U.S.	168,	177	
n.8	(1984)	(same).		The	State	contends	that,	even	if	a	deprivation	of	the	right	to	testify	is	a	structural	
error,	because	Ford	raises	this	issue	in	the	context	of	a	claim	of	ineffective	assistance	of	counsel,	he	
is	still	required	to	show	prejudice.		See	Weaver	v.	Massachusetts,	---	U.S.	---,	137	S.	Ct.	1899,	1908-12	
(2017)	(holding	that	a	deprivation	of	the	right	to	a	public	trial,	even	though	a	structural	error,	does	
not	 entitle	 a	defendant	 to	automatic	 reversal	 when	 brought	 as	a	 claim	 of	 ineffective	 assistance	 of	
counsel).		Because	we	conclude	that	Ford	was	prejudiced	by	the	deprivation	of	his	right	to	testify,	we	
do	not	reach	the	question	of	whether	such	a	deprivation	constitutes	structural	error	or	if	he	would	
be	 entitled	 to	 a	 judgment	 vacating	 the	 underlying	criminal	 judgment	 without	 a	 showing	 of	actual	
prejudice.		See	Rangeley	Crossroads	Coalition	v.	Land	Use	Regulation	Comm’n,	2008	ME	115,	¶	10,	955	
A.2d	 223	 (“We	 avoid	 expressing	 opinions	 on	 constitutional	 law	 whenever	 a	 non-constitutional	
resolution	of	the	issue[]	renders	a	constitutional	ruling	unnecessary.”).	
12	

counsel’s	deficient	performance,	Ford	was	prejudiced	in	his	attempt	to	defend	

against	all	charges	brought	against	him,	entitling	him	to	post-conviction	relief	

from	judgments	of	conviction	on	all	counts.	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 to	 the	 Superior	
                            Court	 for	 entry	 of	 a	 judgment	 granting	 the	
                            petition	for	post-conviction	review	and	vacating	
                            all	 remaining	 convictions	 in	 the	 underlying	
                            criminal	judgment.	
	
	     	    	     	      	      	
	
David Bobrow, Esq. (orally), Bedard & Bobrow, PC, Eliot, for appellant Bartolo P.
Ford

Andrew S. Robinson, District Attorney, Patricia Reynolds Regan, Asst. Dist. Atty.,
and Patricia A. Mador, Asst. Dist. Atty. (orally), Office of the District Attorney,
Lewiston, for appellee State of Maine
	
	
Androscoggin	County	Superior	Court	docket	number	CR-2017-1057	
FOR	CLERK	REFERENCE	ONLY	
