MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2015 ME 158
Docket:   Yor-15-10
Argued:   November 4, 2015
Decided:  December 3, 2015

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



                             CHRISTOPHER R. AYOTTE

                                           v.

                                  STATE OF MAINE

ALEXANDER, J.

         [¶1] This appeal is before us based on a certificate of probable cause, issued

pursuant to 15 M.R.S. § 2131(1) (2014) and M.R. App. P. 19(f), authorizing

Christopher R. Ayotte to appeal from a judgment entered in the Superior Court

(York County, Fritzsche, J.) denying his petition for post-conviction relief. The

certificate authorized appeal on the issue of “[w]hether Ayotte’s trial counsel in

York County provided ineffective assistance in failing to seek dismissal of the

indictment (ALFSC-CR-2013-165) on the ground that it would subject Ayotte to

double jeopardy.”

         [¶2] Ayotte contends that the court erred as a matter of law when it denied

his petition for post-conviction relief after his trial counsel did not assert a double

jeopardy defense to Ayotte’s second prosecution for the same theft offense. Ayotte
2

argues that such a failure constitutes per se ineffective assistance of counsel. We

vacate the trial court’s judgment denying him post-conviction relief.

                                I. CASE HISTORY

      [¶3] In February 2013, Ayotte was indicted in the Unified Criminal Docket

(Cumberland County) for burglary (Class B), 17-A M.R.S. § 401(1)(B)(4) (2014),

and theft by unauthorized taking or transfer (Class C), 17-A M.R.S. § 353(1)(B)(4)

(2014). The charges were based on an alleged improper entry of and theft of items

from a South Portland residence on November 29, 2012.            Count two of the

indictment, charging Class C theft, stated:

      On or about November 29, 2012, in South Portland, Cumberland
      County, Maine, CHRISTOPHER AYOTTE, did commit theft by
      obtaining or exercising unauthorized control over jewelry and/or
      electronics and/or silverware, property of [the victim], of a value more
      than $1,000, with the intent to deprive [the victim] of the property.

      [¶4] In March 2013, the Cumberland County case was resolved through a

plea agreement, by which the burglary charge was dismissed and Ayotte pleaded

nolo contendere to Class C theft by unauthorized taking or transfer. He was

sentenced to thirty-two months of imprisonment.

      [¶5]    In April 2013, Ayotte was indicted in the Superior Court

(York County) for theft by receiving stolen property (Class C), 17-A M.R.S.

§ 359(1)(B)(6) (2014), for allegedly receiving, retaining, or disposing of some of
                                                                                  3

the   same   stolen   property—silverware—to      pawnshops     in   Biddeford   on

November 29, 2012. The indictment stated:

      On or about November 29, 2012, in Biddeford, YORK County,
      Maine, CHRISTOPHER R AYOTTE, did receive, retain, or dispose
      of George Jensen stainless steel dinner forks and a serving fork,
      property of [the victim], knowing it had been stolen, or believing it
      had probably been stolen, with the intent to deprive [the victim] of the
      property. CHRISTOPHER R AYOTTE was convicted of THEFT on
      April 25, 2007, in the York County Superior Court, Alfred, Maine,
      Docket No. CR-06-1651, and of THEFT on October 31, 2011, in the
      York County Superior Court, Alfred, Maine, Docket No. CR-11-242.

See 17-A M.R.S. § 359(1)(B)(6) (enhancing the class of the crime when the

defendant has been previously convicted of theft two or more times).

      [¶6]   Ayotte was appointed different trial counsel in York County.        In

July 2013, the York County case was resolved by a plea agreement with a fully

suspended sentence of six months in jail, followed by two years of probation, to be

served consecutive to Ayotte’s Cumberland County sentence.

      [¶7] In January 2014, Ayotte filed a petition for post-conviction relief from

the York County conviction and sentence. See 15 M.R.S. § 2124 (2014). After

amendment with leave of the court, Ayotte’s petition pleaded one ground for relief:

that his trial counsel in the York County matter had rendered ineffective assistance

of counsel due to failure to move to dismiss the York County indictment on double

jeopardy grounds. See U.S. Const. amend. V; Me. Const. art. I, § 8; Strickland v.

Washington, 466 U.S. 668, 686 (1984).
4

      [¶8] The State answered the petition and appended an affidavit of Ayotte’s

original counsel in the York County matter. Ayotte’s original counsel averred that

he (1) was aware of Ayotte’s Cumberland County conviction for theft of the same

silverware and his resulting sentence; (2) “research[ed] this for a possible double

jeopardy violation” but “came to the conclusion that these were similar, yet

completely different criminal acts”; and (3) attempted to negotiate a plea

agreement for a sentence concurrent to the Cumberland County sentence because

“the crimes were ‘sort of’ linked,” but because the State was unwilling to offer a

concurrent sentence, the parties eventually agreed upon a fully suspended jail

sentence, but with probation consecutive to the Cumberland County sentence.

      [¶9] After hearing oral argument, the court denied Ayotte’s request for

relief. It concluded that Ayotte “was not prosecuted or punished twice for the

same offense” because “different conduct forms the basis of the Cumberland and

York County cases.”

      [¶10] Ayotte filed a timely notice of appeal and a memorandum seeking a

certificate of probable cause permitting full appellate review.    See 15 M.R.S.

§ 2131(1); M.R. App. P. 2(b), 19. We entered an order granting a certificate of

probable cause. See 15 M.R.S. § 2131(1); M.R. App. P. 19(f). The appeal is now

before us on the merits.
                                                                                  5

                                 II. LEGAL ANALYSIS

       [¶11] The prohibitions against double jeopardy are concisely stated in the

Maine and United States Constitutions. “No person, for the same offense, shall be

twice put in jeopardy of life or limb.” Me. Const. art. I, § 8; see also U.S. Const.

amend. V (“[N]or shall any person be subject for the same offence to be twice put

in jeopardy of life or limb . . . .”).

       [¶12]      Whether a criminal prosecution violates the constitutional

prohibitions against double jeopardy is a question of law that we review de novo.

State v. Mitchell, 1998 ME 128, ¶ 4, 712 A.2d 1033. The state and federal

constitutions offer the same extent of protection. State v. Pineo, 2002 ME 93, ¶ 9,

798 A.2d 1093.

       [¶13]    The constitutional prohibitions against double jeopardy prohibit

(1) “a second prosecution for the same offense after acquittal”; (2) “a second

prosecution for the same offense after conviction”; and (3) “multiple punishments

for the same offense.”         State v. Labbe, 2009 ME 94, ¶ 4, 979 A.2d 693

(quoting Ohio v. Johnson, 467 U.S. 493, 497-98 (1984)).

       [¶14] Because a person, by one act or transaction, may violate multiple

criminal laws, courts apply “the Blockburger test” to determine whether the crimes

enumerated by those multiple statutes are “the same offense” for purposes of

double jeopardy protections. See Blockburger v. United States, 284 U.S. 299, 304
6

(1932); Newell v. State, 371 A.2d 118, 119 (Me. 1977). The test asks whether each

statutory provision requires proof of a fact that the other does not. Blockburger,

284 U.S. at 304; see also Newell, 371 A.2d at 119. If each statutory provision

requires a unique proof of fact, the Blockburger test is satisfied and there is no

double jeopardy violation by subsequent prosecutions or multiple punishments.

Blockburger, 284 U.S. at 304; Newell, 371 A.2d at 119.

      [¶15] The first statute in Chapter 15 of the Criminal Code, the chapter

containing the theft crimes, is known as the consolidation statute. It provides that

“[c]onduct denominated theft in this chapter constitutes a single crime.”

17-A M.R.S. § 351 (2014). The statute authorizes the State to charge a defendant

with theft pursuant to one section and prove theft by evidence of conduct that

would constitute a theft pursuant to any of the sections contained in Chapter 15,

subject only to the trial court’s power to control for unfair prejudice to the

defendant. Id.; see also, e.g., State v. Fox, 494 A.2d 177, 179 (Me. 1985).

      [¶16]   Pursuant to 17-A M.R.S. § 353(1)(A) (2014), entitled “Theft by

unauthorized taking or transfer,” “[a] person is guilty of theft if . . . [t]he person

obtains or exercises unauthorized control over the property of another with intent

to deprive the other person of the property.”        For purposes of section 353,

“‘exercises unauthorized control’ includes but is not limited to conduct formerly

defined or known as . . . larceny by conversion,” among other common law crimes.
                                                                                         7

17-A M.R.S. § 353(2) (2014); see also Larceny, Conversion, Direct Conversion,

Black’s Law Dictionary (6th ed. 1990) (indicating that larceny by conversion

includes the disposal by sale of the property of another). Further, Chapter 15

defines the “[i]ntent to deprive” the owner of the property as including having the

conscious object to dispose of the property. 17-A M.R.S. §§ 352(3)(C), 353(1)(A)

(2014).

       [¶17] Pursuant to 17-A M.R.S. § 359(1)(A) (2014), entitled “Receiving

stolen property,” “[a] person is guilty of theft if . . . [t]he person receives, retains or

disposes of the property of another knowing that it has been stolen, or believing

that it has probably been stolen, with the intent to deprive the owner of the

property.” For purposes of section 359, “‘receives’ means acquiring possession,

control or title, or lending on the security of the property,” and “property is ‘stolen’

if it was obtained or unauthorized control was exercised over it in violation of

[Chapter 15].” 17-A M.R.S. § 359(2) (2014).

       [¶18] Theft, as defined by section 353, is sometimes called a “continuing”

or “continuous” crime, in that a person continually violates the statute as long as he

or she exercises unauthorized control over the item with the intent to deprive the

owner of the property. E.g., State v. Moulton, 481 A.2d 155, 158-59 (Me. 1984);

Mayo v. State, 258 A.2d 269, 270 (Me. 1969); see also 17-A M.R.S. § 353(1)(A).

Thus, if a person steals an item in one county and carries that item into another
8

county, he or she has violated section 353 in both counties.              Moulton,

481 A.2d at 158-59; Mayo, 258 A.2d at 270. The State may elect to prosecute the

thief in either county under these circumstances, but a conviction for theft in one

county bars a prosecution for theft in the other. Mayo, 258 A.2d at 270. The same

would be true of theft pursuant to section 359, as a person who receives stolen

property in one county and carries it into another has also retained the stolen

property in the other county. See 17-A M.R.S. § 359(1)(A).

      [¶19] Ayotte’s theft of the silverware was a continuing theft, given that he

continually exercised unauthorized control over the stolen silverware when he took

it in South Portland, carried it to Biddeford, and converted it by selling it. The

continuing nature of the crime does not allow the State to prosecute Ayotte

multiple times in different venues of the same court. Mayo, 258 A.2d at 270.

Thus, Ayotte’s conviction in Cumberland County was a bar to a second

prosecution for the same theft in York County.

      [¶20]   Application of the Blockburger test establishes that the second

indictment charged Ayotte with the same offense for which he had already been

convicted and punished. As we recognized in the 1978 theft case State v. Viger,

“[i]n proving the essential elements of theft by unauthorized taking, the State must

necessarily prove the essential elements of theft by receiving stolen property” as

those elements are enunciated by the two statutes.         392 A.2d 1080, 1085
                                                                                  9

(Me. 1978).   To prove that a person exercised unauthorized control over the

property of another with the intent to deprive the owner of the property,

see 17-A M.R.S. § 353(1)(A), the State must prove that the person acquired

possession of property he knew was stolen with the intent to deprive the owner of

the property, see 17-A M.R.S. § 359(1)(A), (2). Neither statute requires proof of a

unique element. See Blockburger, 284 U.S. at 304.

      [¶21] The State argues that Ayotte was not twice convicted of or punished

for the same offense because disposal of the stolen property is an element unique

to the York County case, which charged theft pursuant to section 359. This

argument fails for three reasons. First, proof of disposal of the property is not

required by section 359, as section 359 is violated when a person receives, retains,

or disposes of the property. 17-A M.R.S. § 359(1)(A). The Blockburger test looks

for a required unique element of proof in each crime.                 Blockburger,

284 U.S. at 304. Second, the disposal element is not unique to section 359, as

section 353 also criminalizes the disposal of stolen property.            Theft by

unauthorized taking or transfer criminalizes the unauthorized exercise of control

over the property of another, which includes the conversion of the property.

17-A M.R.S. § 353(1)(A), (2); see also 17-A M.R.S. § 352(3)(C). Third, even if

the disposal element were required and unique to the theft crime enumerated by

section 359, the Blockburger test requires that each crime require an element of
10

proof that the other does not—the test is not satisfied when only one of the crimes

has a unique element. See Blockburger, 284 U.S. at 304.

         [¶22] The State also argues that the two prosecutions were for different

offenses because the conduct targeted by each prosecution—the taking of the items

in South Portland and the sale of the items in Biddeford—occurred in different

counties.     The State’s reliance on the fact that Ayotte’s actions occurred in

different counties is misplaced. Although the commission of a crime within a

particular county makes that county a proper venue for any resulting prosecution,

see M.R.U. Crim. P. 21, and a crime that spans multiple counties may be

prosecuted in any one of those counties, see Moulton, 481 A.2d at 159, this does

not permit the repeated prosecution of a criminal offense in multiple counties in

our single statewide court,1 see Mayo, 258 A.2d at 270 (Me. 1969).

         [¶23] This is unlike the situation where a defendant, by one act, violates the

laws of two sovereigns, which may each prosecute him or her for the same

underlying conduct without violating double jeopardy protections. See State v.

Castonguay, 240 A.2d 747, 749-50 (Me. 1968) (United States and State of Maine);

State v. Mitchell, 1998 ME 128, ¶¶ 2, 9, 712 A.2d 1033 (Passamaquoddy Tribe and


     1
       Pursuant to the Maine Rules of Unified Criminal Procedure, the State of Maine prosecutes crimes
within the single statewide Unified Criminal Docket. See M.R.U. Crim. P. 1. Prior to the recent
unification process, crimes were either prosecuted in the Superior Court or District Court, each of which
is also a single, statewide court. See 4 M.R.S. §§ 101, 151 (2014).
                                                                                    11

State of Maine). Here, the same sovereign, the State of Maine, twice prosecuted,

convicted, and punished Ayotte for the same theft of the same property belonging

to the same victim.

      [¶24] The only remaining question is to determine whether trial counsel’s

failure to seek dismissal of the York County indictment establishes that Ayotte was

deprived of his right to effective representation, which is the reason he claims

entitlement to post-conviction relief.    At oral argument, the parties disputed

whether they had agreed that a determination of the double jeopardy issue

favorable to Ayotte would also prove his ineffectiveness claim. Because the trial

court concluded that the York County prosecution was not barred by the conviction

in Cumberland County, it did not reach the question—if it was in fact contested—

of whether trial counsel’s failure to seek dismissal of the York County indictment

on double jeopardy grounds constituted constitutionally deficient representation.

      [¶25] Although the issue was not reached in the trial court, we conclude that

in these circumstances, where trial counsel failed to assert a dispositive

constitutional defense to a prosecution, notwithstanding existing law supporting

the existence and availability of that defense, Ayotte was denied effective

assistance of counsel. An accused’s right to counsel is not fulfilled “if counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing.”

United States v. Cronic, 466 U.S. 648, 659 (1984). Here, the State submitted trial
12

counsel’s affidavit, which stated that, after researching the issue, counsel did not

seek dismissal of the York County indictment because he concluded that the

prosecution would not be barred by the state or federal protection against double

jeopardy. In some circumstances, the decisions of counsel that result in a forfeiture

of an accused’s constitutional rights are not tantamount to ineffectiveness.

See, e.g., Roberts v. State, 2014 ME 125, ¶¶ 25-27, 103 A.3d 1031.             Here,

however, counsel failed to raise the defense as a result of his erroneous conclusion

about the state of the law and Ayotte’s rights. Assertion of that defense would

have insulated Ayotte from prosecution of the charge altogether. Under these

circumstances, the only possible conclusion is that trial counsel’s error deprived

Ayotte of effective representation of counsel.

      The entry is:

                      Judgment vacated.        Remanded for       further
                      proceedings consistent with this opinion.




On the briefs:

      Alison B. Meyers, Esq., Hanley Law, LLC, Portland, for
      appellant Christopher Ayotte

      Kathryn Loftus Slattery, District Attorney, Prosecutorial
      District One, Alfred, and Anne Marie Pazar, Esq., for appellee
      State of Maine
                                                                   13

At oral argument:

        Alison B. Meyers, Esq., for appellant Christopher Ayotte

        Anne Marie Pazar, Esq., for appellee State of Maine



York County Superior Court docket number CR-2014-263
FOR CLERK REFERENCE ONLY
