MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 99
Docket:   Cum-18-394
Argued:   May 15, 2019
Decided:  June 18, 2019

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



                                     IGNACIO D. ROQUE

                                               v.

                                      STATE OF MAINE


JABAR, J.

         [¶1] Ignacio D. Roque appeals from a judgment of the Superior Court

(Cumberland County, Eggert, J.) dismissing his petition for post-conviction

review as untimely filed.           Roque contends that the court erred when it

dismissed his petition because he had not been informed of the filing deadline

contained in 15 M.R.S. § 2128-B (2018), and therefore the court was precluded

from summarily dismissing the petition based on the statutory filing deadline.

We disagree and affirm the dismissal of Roque’s petition.

                                      I. BACKGROUND

         [¶2]     On September 23, 2016, Roque pleaded guilty to charges of

aggravated trafficking in scheduled drugs (Class A), 17-A M.R.S. § 1105-A
2

(2015),1 and illegal importation of scheduled drugs (Class C), 17-A M.R.S.

§ 1118 (2018). The record does not reflect that Roque was informed by the

court or his attorney of his right to file a petition for post-conviction review or

of any of the associated filing deadlines. Roque did not directly appeal his

conviction but filed a petition for post-conviction review on January 10, 2018,

seeking to collaterally attack his conviction on the basis of ineffective assistance

of counsel.          After counsel was appointed to represent Roque, the State

responded to Roque’s petition, seeking dismissal on the ground that the

petition was untimely filed.

          [¶3] On September 18, 2018, the court granted the State’s request and

dismissed Roque’s petition as untimely filed. See 15 M.R.S. § 2128-B(1).2 Roque




    1Title 17-A M.R.S. § 1105-A has since been amended, though not in any way that affects the
present case. P.L. 2017, ch. 460, §§ F-2, F-3 (effective July 9, 2018) (codified at 17-A M.R.S.
§ 1105-A(1)(K)-(M) (2018)).
    2   15 M.R.S. § 2128-B(1) (2018) sets forth the following filing deadlines:

             A one-year period of limitation applies to initiating a petition for post-conviction
          review seeking relief from a criminal judgment under section 2124, subsection 1 or
          1-A. The limitation period runs from the latest of the following:

          A. The date of final disposition of the direct appeal from the underlying criminal
          judgment or the expiration of the time for seeking the appeal;

          B. The date on which the constitutional right, state or federal, asserted was initially
          recognized by the Law Court or the Supreme Court of the United States if the right has
          been newly recognized by that highest court and made retroactively applicable to
          cases on collateral review; or
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timely appealed the court’s dismissal and we granted Roque a certificate of

probable cause to proceed with the appeal. See 15 M.R.S. § 2131(1) (2018);

M.R. App. P. 19(a)(2)(F).

                                      II. DISCUSSION

      [¶4] The question presented in this case is whether a defendant’s trial

attorney or a sentencing court has any obligation to notify a defendant of his or

her rights pursuant to the post-conviction review statute, 15 M.R.S.

§§ 2121-2132 (2018). Roque contends that the court erred in its determination

that there is no duty imposed on trial counsel or the sentencing court to inform

a defendant about the deadlines for filing a post-conviction review petition. We

review a post-conviction court’s legal conclusions de novo. Fortune v. State,

2017 ME 61, ¶ 12, 158 A.3d 512.

A.    Sentencing Court

      [¶5] Roque asserts that the sentencing court’s duty to advise defendants

of the deadline for filing a petition for post-conviction review during a Rule 11

guilty plea stems from a “due process precondition.” Although Rule 11 imposes

numerous duties on the court, specifically informing a defendant about



      C. The date on which the factual predicate of the claim or claims presented could have
      been discovered through the exercise of due diligence.
4

post-conviction review is not one of them.         M.R.U. Crim. P. 11(b)(1)-(4).

Furthermore, Roque does not cite, and our independent research fails to reveal,

any authority supporting the proposition that a sentencing court has an

affirmative duty to advise defendants about their rights to seek post-conviction

review.   We decline Roque’s invitation to impose a new obligation on

sentencing courts to inform defendants about the filing deadline set out in

15 M.R.S. § 2128-B.

B.    Trial Counsel

      [¶6] Next, Roque asserts that his trial counsel’s failure to inform him of

the filing deadline for post-conviction review petitions constituted ineffective

assistance of counsel and precludes enforcement of the filing deadline.

      [¶7]   “Representation of a criminal defendant entails certain basic

duties,” such as the duty to consult with the defendant “on important decisions

and to keep the defendant informed of important developments in the course

of the prosecution.”    Strickland v. Washington, 466 U.S. 668, 688 (1984).

Although there is no bright-line duty requiring trial counsel to consult with his

or her client about post-conviction motions, appeals, or petitions for

post-conviction review, cf. Roe v. Flores-Ortega, 528 U.S. 470, 479-81 (2000),

there might be a circumstance where counsel could perform ineffectively by
                                                                                5

failing to consult with a defendant about the right to seek post-conviction

review, see McGowan v. State, 2006 ME 16, ¶ 12, 894 A.2d 493 (“[Strickland] is

applied on a case-by-case basis, and evaluations of ineffective assistance of

counsel claims are guided by the overall justness and fairness of the

proceeding.” (quotation marks omitted)); cf. Gunner v. Welch, 749 F.3d 511,

517-19 (6th Cir. 2014).

      [¶8] However, even if trial counsel has a duty to consult with a defendant

about post-conviction review in some circumstances, Roque’s challenge does

not present such circumstances. See Chautla v. Young, No. 1:12CV771, 2013 U.S.

Dist. LEXIS 14565, at *14-17 (M.D.N.C. Feb. 4, 2013). In Roe v. Flores-Ortega, the

United States Supreme Court held that there is no bright-line duty to consult

with a defendant about an appeal; that duty is imposed only when (1) a rational

defendant would want to appeal or (2) the defendant reasonably demonstrates

to counsel that he was interested in an appeal. 528 U.S. at 480. We do not

equate the right to appeal with the right to seek post-conviction review; an

appeal involves the underlying case directly, whereas post-conviction review is

a collateral challenge to the conviction.      Nevertheless, given the lack of

authority regarding the issue raised in this case, Flores-Ortega provides some
6

helpful guidance regarding the duty to consult with a client about a means of

seeking post-judgment relief. See id. at 476-86.

        [¶9] In this case, Roque pleaded guilty, was sentenced in accordance with

the plea agreement, and has never alleged that he demonstrated to trial counsel

that he was interested in pursuing any post-conviction motions, appeals, or

petitions. Thus, pursuant to the Flores-Ortega framework, Roque’s trial counsel

would not have been under a duty to consult with Roque about an appeal, let

alone a post-conviction review petition. See id. 479-81.

                                      III. CONCLUSION

        [¶10] In sum, the court did not err when it dismissed Roque’s petition

for post-conviction review as untimely filed. See 15 M.R.S. § 2128-B; Finch v.

State, 1999 ME 108, ¶¶ 1, 14-15, 736 A.2d 1043.

        The entry is:

                           Judgment affirmed.



Lawrence C. Winger, Esq. (orally), Portland, for appellant Ignacio D. Roque

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine


Cumberland County Unified Criminal Docket docket number CR-2018-283
FOR CLERK REFERENCE ONLY
