MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 137
Docket:   Aro-14-158
Argued:   December 9, 2014
Decided:  October 29, 2015

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


                                MARK J. THERIAULT

                                           v.

                                  STATE OF MAINE

HJELM, J.

       [¶1]     After a jury trial held in February 2011, Mark J. Theriault was

convicted of one count of unlawful sexual contact (Class A), 17-A M.R.S.

§ 255-A(1)(F-1) (2014). Theriault challenged the judgment through a petition for

post-conviction review, see 15 M.R.S. § 2122 (2014), alleging that he was denied

effective assistance of counsel during the underlying criminal proceeding. The

Superior Court (Aroostook County, Hunter, J.) denied Theriault’s petition after a

hearing, and we issued a certificate of probable cause, allowing Theriault to appeal

the adverse post-conviction judgment. See 15 M.R.S. § 2131(1) (2014); M.R.

App. P. 19. Because the court’s decision applied a test for prejudice that did not

fully comport with the standard established in Strickland v. Washington,
                                                                                   2

466 U.S. 668 (1984), we vacate the post-conviction judgment and remand for

reconsideration.

                                 I. BACKGROUND

      [¶2] We view the record of both the post-conviction proceeding and the

underlying criminal action in the light most favorable to the State as the prevailing

party. See Lamarre v. State, 2013 ME 110, ¶ 2, 82 A.3d 845. Theriault was

indicted in July 2008 for unlawful sexual contact committed in March 2008 against

a child who, at the time of the offense, was six years old. Attorney Allan Hanson

was appointed to represent Theriault, and the case proceeded to a one-day jury trial

in February 2011 (Aroostook County, Hunter, J.).          The State presented the

testimony of three witnesses: the victim’s sister, a registered nurse who spoke with

the victim at a local hospital after the victim’s mother brought her there on the day

of the incident, and the victim herself.

      [¶3] The victim’s sister, who was twenty-two years old at the time of the

trial, testified that in March 2008, she lived with the victim and their brother,

mother, and stepfather, near Theriault’s residence. On March 14, 2008, Theriault

drove her and the victim to a nearby store, and Theriault invited them back to his

house. The sister refused, but the victim went with him. Later in the day, the

victim returned home with wet hair and said that she had taken a bath. When the

sister asked about the wet hair, the victim became quiet. That evening, the sister
                                                                                     3

asked if Theriault had seen the victim naked and if Theriault had touched her

“down there,” referring to the victim’s genitals. Becoming emotional, the victim

said that he had seen her naked and touched her. The sister, who acknowledged

that she is not trained to interview children, testified that as she spoke with the

victim, she (the sister) first referred to the genital area as “down there,” and first

raised the issue of whether the victim and Theriault were naked.

      [¶4] The victim’s sister reported the disclosure to their mother, who then

drove the victim and the sister to a nearby hospital. The victim and the sister

continued to discuss the assault during the ride. At the hospital, the victim was

examined by a registered nurse who was trained to assist physicians with primary

assessments of sexual assault victims younger than thirteen years old. During the

evaluation, the victim told the nurse that after she had taken a bath, Theriault called

her into the living room and touched her over her clothing “down there,” which the

victim identified by pointing toward her genitals. The nurse examined the victim

and found no physical injury resulting from the alleged assault, which, based on

the reported nature of the assault, was not unexpected. The nurse ultimately

referred the victim for a forensic evaluation at The Spurwink Child Abuse

Program, which specializes in pediatric sexual abuse assessments and interviews.

No evidence was presented about the Spurwink evaluation.
                                                                                                        4

        [¶5] The victim then testified that in March 2008, when she was six years

old, she went to Theriault’s residence, and, while there, she took a bath. After she

got dressed, and while she was using a PlayStation video game, Theriault told her

to go into his bedroom, where he removed her clothes, told her to lie down on the

bed, and touched her genitals, penetrating her with his fingers.

        [¶6] Theriault did not present a case-in-chief. The jury found him guilty,

and at a sentencing hearing held two days later, the court imposed a prison term of

sixteen years, with all but eight years suspended, and six years of probation.

Attorney Hanson filed a notice of appeal and an application for leave to appeal the

sentence. See 15 M.R.S. § 2151 (2014); M.R. App. P. 20. Theriault’s current

attorney entered his appearance soon after, and Attorney Hanson withdrew as

counsel. We denied Theriault’s application to allow an appeal from sentence, and

in August 2011 we dismissed his direct appeal for want of prosecution.

        [¶7] In August 2012, Theriault filed a petition for post-conviction review,

which, as amended in May 2013, alleged that Attorney Hanson failed to provide

effective representation during the pretrial and trial proceedings.1 A trial on the

post-conviction petition was held in September 2013, at which Attorney Hanson

and Theriault both testified. During the hearing, the court admitted into evidence a
   1
      Theriault also attempted to pursue a claim of ineffective assistance of counsel through a motion for
new trial. See M.R. Crim. P. 33 (superseded by M.R.U. Crim. P. 33 (effective Jan. 1, 2015)). The court
correctly denied the motion, because such a claim must be addressed in a post-conviction proceeding. See
State v. Ali, 2011 ME 122, ¶ 20, 32 A.3d 1019.
                                                                                    5

report of the psychosocial evidentiary assessment conducted by a licensed clinical

social worker at the Spurwink Child Abuse Program. The report states that during

the forensic interview of the victim conducted on March 25, 2008, “When asked if

somebody had done something to her that she does not like, [the victim] stated,

‘No.’” Additionally, the report recites, “When asked if [Theriault] does something

that she does not like, she stated, ‘Hmmm, no.’” According to the report, the

victim also initially denied that anything had happened “to her privates.” She then

agreed that someone had touched her “privates” and, in response to a series of

questions, described at least one incident when Theriault sexually assaulted her.

      [¶8] After the parties submitted post-trial arguments, on March 11, 2014,

the court issued a written decision denying the petition, concluding that its

“analysis of the prejudice prong is determinative of this petition.” In its order, the

court outlined the two-part test that controls claims of ineffective assistance of

counsel, which focuses on the quality of trial counsel’s performance and any

resulting prejudice. Addressing the issue of prejudice, the court stated generally,

“If a post-conviction petitioner proves ineffective assistance, he must also

demonstrate that the outcome of the proceedings would have been different but for

counsel’s performance.”

      [¶9]   The court then proceeded to address many of Theriault’s specific

challenges to the quality of Attorney Hanson’s representation of him, finding in
                                                                                                        6

each instance that Theriault had not demonstrated prejudice resulting from

Attorney Hanson’s allegedly inadequate representation of him. In a number of its

findings, the court framed the issue of prejudice in terms of whether, if Attorney

Hanson had performed as Theriault contended he should have, there would have

been a different outcome in the criminal trial. The court found, for example, that

        • Theriault failed to prove that services of a private investigator, which
          Attorney Hanson did not secure, “might have produced a different
          outcome at his trial” or would have made a “difference in the outcome of
          this case”;

        • Theriault did not prove that Attorney Hanson’s failure to consult with an
          expert on child interview issues “would have produced a different
          outcome at trial”;

        • Theriault did not prove that evidence of Theriault’s character, which
          Attorney Hanson did not present, “would have made a difference at his
          trial”;

        • Theriault failed to prove that if he had testified, “the outcome of his trial
          would have been different”; and

        • Theriault did not prove that, with additional information presented at the
          sentencing hearing, “the court’s sentence might have been different.”2

        [¶10] The court also considered Theriault’s claim that Attorney Hanson did

not present available evidence that Theriault did not have a PlayStation at his

house, to impeach the victim’s testimony that she was playing with a PlayStation at

   2
      Although Theriault’s post-conviction petition alleged deficiencies in Attorney Hanson’s pretrial and
trial representation, he presented evidence at the hearing that Attorney Hanson also did not provide
effective representation during the sentencing phase of the case, and the court examined that claim. It
therefore became part of the basis for Theriault’s claim for relief.
                                                                                     7

his house shortly before he assaulted her. The court rejected this claim, noting that

at trial Attorney Hanson presented evidence that the victim told the nurse that

Theriault had touched her over her clothing, which was inconsistent with the

victim’s trial testimony that she was not wearing clothes at the time of the assault.

The court found that because the jury appears to have accepted the victim’s

testimony despite her contradictory statements about the incident itself, evidence

that Theriault did not have a PlayStation was not “likely to have produced a

different result.” In its order, the court did not address Theriault’s argument that

Attorney Hanson should have presented evidence of the victim’s exculpatory

statements made during the Spurwink evaluation to impeach her inculpatory trial

testimony.

      [¶11]    Without reaching the question of whether Attorney Hanson’s

representation of Theriault was constitutionally deficient, the court denied the

petition based on its conclusion that Theriault “has failed to persuade this court that

he was actually prejudiced by any such deficiencies.”          Theriault successfully

sought leave to appeal the judgment pursuant to 15 M.R.S. § 2131(1) (2014) and

M.R. App. P. 19.

                                 II. DISCUSSION

      [¶12]   Because the court denied Theriault’s petition for post-conviction

review on the sole basis that he had not proved prejudice arising from any
                                                                                                            8

constitutional inadequacies in legal representation, the limited issue presented here

is whether the court erred in that determination. 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. Roberts v. State, 2014 ME 125,

¶ 21, 103 A.3d 1031.

        [¶13] As we have recently noted, Strickland is the “seminal case” that

establishes the standards controlling the disposition of claims of ineffective

assistance of counsel. Manley v. State, 2015 ME 117, ¶ 12, --- A.3d ---.3 The

federal constitutional guarantee of the right to counsel under the Sixth Amendment

extends to the states through the Fourteenth Amendment, Missouri v. Frye,

566 U.S. ---, 132 S. Ct. 1399, 1404 (2012), and so the Strickland standards govern

ineffectiveness claims in state court post-conviction proceedings.

        [¶14]     To prevail in a post-conviction proceeding based on an alleged

constitutional deprivation of counsel, the petitioner must demonstrate two points:

first, “that counsel’s representation fell below an objective standard of

reasonableness,” and second, that “errors of counsel . . . actually had an adverse

effect on the defense.” Strickland, 466 U.S. at 688, 693. These elements of an

ineffective assistance case, when proved, constitute a “showing that counsel’s
   3
       In Manley, we reaffirmed that Strickland v. Washington, 466 U.S. 668 (1984), dispositively
establishes the criteria in ineffectiveness claims, including the nature of prejudice that the petitioner must
establish, despite language in some of our opinions that is not fully consistent with that federal authority.
Manley v. State, 2015 ME 117, ¶ 18, --- A.3d ---.
                                                                                                              9

errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id. at 687. It is the second of these two elements that is at issue here.4

         [¶15] We consider in turn Theriault’s alternative arguments that he was

presumptively prejudiced by Attorney Hanson’s ineffective representation, and that

the court erred in finding that he had not proved actual prejudice.

A.       Presumed Prejudice

         [¶16] Theriault first argues that Attorney Hanson’s representation was so

deficient that he is relieved of any burden to prove actual prejudice. Theriault did

not advance this argument in the trial court, and so we review it under the obvious

error standard. See State v. Dolloff, 2012 ME 130, ¶ 31, 58 A.3d 1032. An error is

obvious if it is plain, affects substantial rights, and “seriously affects the fairness

and integrity or public reputation of judicial proceedings.” Id. ¶ 35 (quotation

marks omitted).

         [¶17] In cases where counsel’s ineffectiveness amounts to the “constructive

denial of the assistance of counsel,” prejudice is “legally presumed” and need not


     4
      Both federal and state law make clear that if a trial court concludes that the petitioner has not proved
prejudice resulting from any alleged ineffectiveness, the court is entitled to deny the petition on that basis
without reaching the question of whether the petitioner has also proved that ineffectiveness. See, e.g.,
Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”); Francis v. State, 2007 ME 148, ¶ 6,
938 A.2d 10. Here, the court therefore followed a well-established analytical path by addressing the
prejudice prong first but, having determined that issue adversely to Theriault, not reaching his claim of
ineffectiveness.
                                                                                 10

be affirmatively proved. Strickland, 466 U.S. at 692; see also United States v.

Cronic, 466 U.S 648, 659 (1984). Such cases, however, are “rare,” Laferriere v.

State, 1997 ME 169, ¶ 11, 697 A.2d 1301, and occur when there is a “complete

denial of counsel” or when “counsel entirely fails to subject the prosecution’s case

to meaningful adversarial testing.” Cronic, 466 U.S. at 659; see also Pineo v.

State, 2006 ME 119, ¶ 15, 908 A.2d 632 (holding that under federal jurisprudence,

Cronic applies only when “defense counsel utterly fails in defending a client”).

See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980) (prejudice is presumed

when counsel proceeded to represent the accused despite a conflict of interest);

Geders v. United States, 425 U.S. 80, 86, 91 (1976) (prejudice is presumed when a

court order prevented a defendant from consulting with trial counsel during an

overnight recess between his direct- and cross-examination); Herring v. New York,

422 U.S. 853, 857-64 (1975) (prejudice is presumed when trial counsel was

prohibited from making a closing argument).             See generally Laferriere,

1997 ME 169, ¶ 11, 697 A.2d 1301.

      [¶18]   Here, the record does not plainly demonstrate that, if Attorney

Hanson’s representation of Theriault was ineffective, it fell so far below

constitutional standards that it constitutes one of the “rare” situations where

Theriault would not be required to prove actual prejudice. Consequently, Theriault

has not shown that the court committed obvious error by failing to presume the
                                                                                    11

existence of such prejudice to his right to counsel and instead examining the

post-conviction record for actual prejudice. Theriault is therefore left with the

burden of affirmatively proving prejudice. Accordingly, we turn to Theriault’s

contention that the court erred when it concluded that Theriault had not proved

actual prejudice.

B.    Actual Prejudice

      [¶19] When prejudice cannot be presumed in a post-conviction challenge

based on ineffective representation, the actual prejudice that a petitioner must

prove “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. Although this standard makes reference to a “probability,” which

suggests a quantitative inquiry, Strickland’s test for demonstrating actual prejudice

requires a showing of a “reasonable probability,” which is defined as a showing

that the alleged ineffectiveness is enough to “undermine confidence in the

outcome” of the underlying proceeding. Id. (emphasis added). Put another way, a

criminal defendant is prejudiced by constitutionally ineffective representation

when the result of the proceeding is “unreliable.” Id. at 687. Under Strickland,

therefore, the trial court must engage in an analysis that is not quantitative—that is,

to determine if prejudice is probable.       Rather, the court’s analysis must be
                                                                                       12

qualitative in nature—that is, to determine whether the petitioner has demonstrated

that trial counsel’s performance undermines confidence in the outcome of the case

and renders that outcome unreliable.

      [¶20]     In Strickland, the Court expressly held that the proper test of a

“reasonable probability” is different from an “outcome-determinative” standard,

which is the quantitative inquiry that would require proof “that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Id. at 693. In

expressly     rejecting   the   different     standard   of   proof   contained   in   the

“outcome-determinative” test, id. at 697, the Court explained that “[t]he result of a

proceeding can be rendered unreliable, and hence the proceeding itself unfair, even

if the errors of counsel cannot be shown by a preponderance of the evidence to

have determined the outcome.”               Id. at 694; see also Lockhart v. Fretwell,

506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome

determination, without attention to whether the result of the proceeding was

fundamentally unfair or unreliable, is defective.”); Gonzalez-Soberal v.

United States, 244 F.3d 273, 277 (1st Cir. 2001) (holding that the trial court

committed error by stating that the petitioner “must demonstrate that but for the

unprofessional error, he would not have been found guilty,” even when the court

correctly articulated the Strickland prejudice standard elsewhere in its written order

(quotation marks omitted)). In those cases, the outcome-determinative test exceeds
                                                                                 13

the burden that a petitioner is required to meet under Strickland’s “reasonable

probability” standard and could result in the denial of relief that would otherwise

be available under Strickland.

      [¶21] In examining the relationship between the “reasonable probability”

and “outcome-determinative” standards, it is significant to note that under some

circumstances, a petitioner can satisfy the “reasonable probability” test by proving

by a preponderance of the evidence that counsel’s deficient representation altered

the outcome of the case—in other words, by satisfying the outcome-determinative

test. See Williams v. Taylor, 529 U.S. 362, 396-97 (2000). In Williams, the

Virginia Supreme Court had vacated the trial court’s judgment granting

post-conviction relief based on ineffective assistance of counsel. Id. at 370-71.

The Virginia Supreme Court construed the trial court to have used the outcome-

determinative test, which the appellate court found was error. Id. at 371, 397. The

United States Supreme Court reversed the Virginia Supreme Court’s decision and

reinstated the trial court’s judgment for the petitioner.   Id. at 397-99.    In its

analysis, the Supreme Court held that the Virginia appeals court itself erred by

concluding that a “mere difference in outcome is not sufficient to establish

constitutionally ineffective assistance of counsel.” Id. at 397 (quotation marks

omitted). Thus, Williams held that in that case, where the petitioner had proved

that ineffective representation actually determined the outcome of the underlying
                                                                                                    14

case, the petitioner also satisfied the “reasonable probability” aspect of the

Strickland standard of prejudice.5 See id. at 397-99.

       [¶22] Significantly for purposes of this case, however, the Williams Court

did not hold that a petitioner’s failure to satisfy the outcome-determinative test

must lead to a denial of the petition.                        Where a court imposes the

outcome-determinative test and determines that the petitioner has not proved

prejudice under that standard, then in effect the court is concluding that the

petitioner fell short of meeting a standard that is higher than the test that should

have been applied pursuant to Strickland.                    In other words, a petitioner’s

satisfaction of the outcome-determinative test is often one way to meet the

Strickland prejudice standard that is sufficient, but not necessary.

       [¶23]      Controlling federal jurisprudence therefore establishes that the

“reasonable       probability”        standard      defined       in     Strickland       and      the

outcome-determinative test differ in substance and are not co-extensive. With


   5
         In two other cases, however, the United States Supreme Court explained that the
outcome-determinative test might improperly allow relief where it should not be granted. In one case,
where counsel failed to make an objection based on a legal argument that was subsequently discredited,
the Court noted that the defendant might have “lost” a meritless opportunity for a more favorable
outcome, but the reliability of the criminal proceeding’s outcome is not compromised. Lockhart v.
Fretwell, 506 U.S. 364, 367-69, 371-72 (1993). In the second case, the Supreme Court held that an
attorney’s decision not to knowingly present false exculpatory evidence did not prejudice the defendant
within the meaning of Strickland. Nix v. Whiteside, 475 U.S. 157, 175-76 (1986). Even if the defendant
proved that he would have attained a better outcome with perjured testimony, that outcome would not
have been reliable. Id. These cases demonstrate that in some circumstances, a petitioner cannot always
satisfy the “prejudice” prong of the Strickland standard without addressing whether counsel’s conduct
undermined the reliability of the proceedings.
                                                                                                   15

these insights into the nature of the “reasonable probability” test, we turn to the

court’s determination that Theriault failed to prove that he was prejudiced by any

deficiencies in Attorney Hanson’s representation of him.

       [¶24]     Here, the court concluded that Theriault did not prove that any

deficiencies in Attorney Hanson’s representation led to “a different outcome” or a

“different result,” and that they did not make “a difference.” In its order, the court

articulated this standard as an overarching principle it would apply to Theriault’s

challenges generally, and it then applied this standard to a number of Theriault’s

specific complaints about Attorney Hanson’s work on the case.6 On this basis, the

court denied Theriault’s petition.

       [¶25] By formulating and applying the prejudice requirement in this way,

the court used only a portion of the prejudice standard prescribed in Strickland: it

limited its inquiry to the question of whether the outcome of the criminal trial

would have been different absent any ineffectiveness in legal representation. The

court, however, did not go on to apply the remaining aspects of the unitary

Strickland prejudice test, which also requires the court to determine if there is a

“reasonable probability” that the ineffectiveness resulted in a different outcome—

meaning, whether ineffective assistance of counsel rose to the level of
   6
       For several of Theriault’s specific challenges, the court framed the prejudice standard more
generally, concluding, for example, that certain deficiencies did not “cause[] him prejudice” and that
Theriault had not “affirmatively demonstrate[ed] prejudice.” As noted in the text, however, the court
rejected Theriault’s other challenges based on the outcome-determinative test.
                                                                                16

compromising the reliability of the conviction and undermining confidence in it.

By employing only a portion of the Strickland principle, the court in effect

employed the outcome-determinative test rejected in Strickland because it

determined only whether the outcome was likely different than it would have been

if the petitioner had been properly represented, without considering whether the

guilty verdict and resulting conviction were unreliable and not worthy of

confidence.    466 U.S. at 693 (“[A] defendant need not show that counsel’s

deficient conduct more likely than not altered the outcome in the case.”). In this

case, the effect of the outcome-determinative standard of prejudice was to impose

on Theriault a greater burden than, as a constitutional matter, he was obligated to

bear.

        [¶26] For several of Theriault’s challenges to Attorney Hanson’s conduct,

Theriault offered no evidence whatever of how he was prejudiced by those alleged

failures.   For example, Theriault did not present any evidence about what

information a private investigator might have found to provide an exculpatory

explanation for the victim’s accusations.     On those points, Theriault failed to

demonstrate entitlement to post-conviction relief regardless of how one might

characterize the element of prejudice, because the complete absence of any

evidence of prejudice would preclude any prospect of proving that the guilty

verdict was unreliable and not entitled to confidence.
                                                                                 17

      [¶27]     On other aspects of Theriault’s claims, however, the court’s

assessment of prejudice was necessarily more nuanced. For example, to address

Theriault’s claim that Attorney Hanson failed to present evidence that Theriault did

not have a PlayStation at his house, the court was required to evaluate the

prospective impact of that evidence to impeach the victim’s testimony that she was

using that type of game at Theriault’s house on the day of the assault. This

assessment of the evidence was necessary because, as the court observed, the jury

in fact was presented with other impeachment evidence: during her report of the

assault to the nurse, the victim recounted the assault itself in a way that was

different than what she described during her trial testimony, and Theriault

presented evidence to the jury that some aspects of the victim’s accusations may

have been influenced by the way her sister elicited information when the victim

first disclosed the assault. The court was therefore called to gauge the effect of

additional impeachment evidence, even though it may have related to a collateral

matter.       In doing so, however, the court erroneously employed the

outcome-determinative test, and on that basis, rejected Theriault’s argument that

Attorney Hanson’s failure to present the evidence about the PlayStation resulted in

prejudice.
                                                                                                       18

        [¶28] Additionally, Theriault argued in the trial court, as he does on appeal,7

that he was prejudiced by Attorney Hanson’s failure to present any evidence of the

prior exculpatory statements made by the victim during the Spurwink evaluation,

when she reportedly said that no one—including Theriault—had done anything to

her that she did not like, and, more specifically, that Theriault had not sexually

assaulted her. The court did not discuss this evidence in its order, and neither party

requested that the court issue findings on the issue. In those circumstances, we

ordinarily would infer that a court made factual findings sufficient to support its

ultimate conclusion.8          See State v. Dodd, 503 A.2d 1302, 1307 (Me. 1986);

Alexander, Maine Appellate Practice § 416(e) at 273 (4th ed. 2013).                              In the

specific circumstances of this case, however, the legitimacy of that inference is

undermined, because it would attribute to the court the use of a legal principle that

it misstated several times in its order.

   7
      Both in the trial court and on appeal, Theriault has contended that Attorney Hanson failed to
cross-examine the victim about her inconsistent statements and that he did not call other witnesses who
could have testified about those inconsistent statements. The record plainly demonstrates that one such
witness is the Spurwink evaluator.
   8
      One way we could make that inference in this case is to consider the form of the evidence of the
Spurwink evaluation presented to the court at the post-conviction hearing, which was a report written by
the LCSW who conducted the evaluation. The evaluator herself did not testify at the post-conviction
hearing, and Theriault did not establish the foundation that would be necessary for admission into
evidence of the report itself, which is hearsay, see M.R. Evid. 801-803. The report, however, was
admitted into evidence at the post-conviction hearing without objection; neither party has suggested that
the information in the report could not have been presented in admissible form at trial; and the State has
not argued that Theriault’s prejudice argument fails on this basis. Under these circumstances, we
conclude that the manner in which evidence of the Spurwink evaluation was presented to the court is not a
reason to reject Theriault’s argument that he was prejudiced by Attorney Hanson’s failure to present it at
the criminal trial.
                                                                                                       19

        [¶29] We therefore conclude that in analyzing Theriault’s claim that he was

actually prejudiced by Attorney Hanson’s ineffective representation, the court did

not fully implement the proper standard of prejudice established in Strickland.

                                        III. CONCLUSION

        [¶30] We remand this matter for reconsideration of Theriault’s claims of

prejudice based on the Strickland rubric. We recognize the Strickland Court’s

observation that application of the “reasonable probability” test rather than the

“outcome-determinative test” will “alter the merit of an ineffectiveness claim only

in the rarest case.” 466 U.S. at 697; Manley, 2015 ME 117, ¶ 13, --- A.3d ---. We

cannot, however, substitute our judgment for that of the trial court by presuming to

determine whether, under the proper standard, Attorney Hanson’s alleged

ineffectiveness resulted in prejudice as that test is prescribed in Strickland.

Accordingly, we must remand for reconsideration of Theriault’s claim of prejudice

under that standard.9




   9
      The First Circuit has suggested that in evaluating claims of ineffectiveness arising from trial
counsel’s failure to present evidence to impeach witnesses who provide incriminating testimony, the court
may consider factors such as the strength of the State’s case, the effectiveness of the actual defense
presentation, and the significance of the impeachment value of evidence that trial counsel failed to
develop. Gonzalez-Soberal v. United States, 244 F.3d 273, 278 (1st Cir. 2001).

   We further note that on remand, if the court concludes that Theriault has proved that under Strickland,
he was prejudiced by alleged deficiencies in Attorney Hanson’s representation of him, the court will also
be required to consider whether Theriault has further proved that that representation in fact fell below
constitutional standards.
                                                                                                      20

         The entry is:

                         Judgment vacated.               Remanded        for    further
                         proceedings.




SAUFLEY, C.J., concurring.

         [¶31] I join fully in the analysis and outcome of the Court’s opinion. I write

separately because the standards applicable to claims of ineffective assistance of

counsel have not, historically, been sufficiently clear, and it is worthwhile to

emphasize the clarifications addressed by the Court today.10

         [¶32] The original two-pronged analysis of ineffective assistance of counsel

claims now presents two potential components within each of its original two

prongs. To be clear, however, the trial judge may begin the analysis at any point

that works with the facts of the individual case.

         1. Ineffectiveness—The ineffectiveness prong requires the court to
            examine whether counsel’s representation “fell below an objective
            standard of reasonableness.”11 This analysis now encompasses two
            aspects.




   10
       In the matter before us, the trial court did not have the benefit of the clarified analysis of the
jurisprudence provided in the Court’s opinion today.
   11
        Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
                                                                                              21

              (a) Extreme Ineffectiveness.12 The court must examine the
              record and the evidence presented to determine whether the
              representation was so deficient that the defendant will be
              relieved of the burden of proving actual prejudice. This
              “extreme ineffectiveness” analysis may precede other
              components of the analysis. Although it is devoutly to be
              hoped that such substantial failure of counsel will rarely be
              found to exist, the court must engage in this review by the time
              it has completed its analysis.

              (b) Ineffectiveness that Causes Actual Prejudice. Absent a
              finding of extreme ineffectiveness, the court must determine
              whether counsel’s conduct constituted ineffectiveness that
              resulted in “actual” prejudice. Because this determination of
              ineffectiveness will be necessary only if the petitioner
              demonstrates actual prejudice, it is often the last part of the
              analysis. Thus a court is fully warranted in moving to the
              question of actual prejudice before addressing this subpart.

       2. Actual Prejudice—As the Court has clarified today, actual
          prejudice can be demonstrated in two different ways.

              (a) Reasonable Probability Test. To demonstrate actual
              prejudice, the petitioner must demonstrate a “reasonable
              probability” that the result would have been different but for
              counsel’s unprofessional errors, meaning that “counsel’s
              conduct so undermined the proper functioning of the
              adversarial process that the trial cannot be relied on as having
              produced a just result.”            Strickland v. Washington,
              466 U.S. 668, 686, 694 (1984). Thus, the court must determine
              whether the ineffective assistance of counsel compromised the
              reliability of the conviction and undermined confidence in it.

              To prevail, the “defendant need not show that counsel’s
              deficient conduct more likely than not altered the outcome in
              the case.” Id. at 693. If the court finds that the reliability of the

  12
       Because a finding of extreme ineffectiveness eliminates the requirement of proof of actual
prejudice, it is sometimes considered a part of the prejudice prong.
                                                                                                        22

                  conviction and the court’s confidence in that conviction have
                  been compromised, it must assure that it has completed its
                  analysis of the ineffective assistance prong because, once again,
                  prejudice that is unrelated to the claimed ineffective assistance
                  of counsel does not fall within this analysis.13

                  (b) Outcome Determinative Test. The outcome determinative
                  test is in essence a specific application of the reasonable
                  probability test.      In many instances, if the petitioner
                  demonstrates by a preponderance of the evidence that counsel’s
                  alleged deficient representation altered the outcome of the case,
                  the court need go no further with regard to the determination of
                  prejudice because, by definition, the petitioner has proved that
                  the result is unreliable.14 Prejudice has been proved, as long as
                  the court has found deficiency in representation.

                  To be clear, a petitioner may prevail in demonstrating actual
                  prejudice by meeting the outcome determinative test, but the
                  petitioner need not meet this test to prevail on the reasonable
                  probability test.

          [¶33] With the Court’s careful clarification today on this last point and the

trial court’s reference solely to the outcome determinative test, it is appropriate for

us to remand the matter to the trial court for application of the law as it relates to

actual prejudice. Thus, I cannot join the dissent’s approach because it usurps the

authority of the trial court to make the determination in the first instance.




   13
       Although there may be other remedies for the petitioner, claims of ineffective assistance of counsel
are distinct and should not be blurred with others analytically.
   14
        But see Court’s Opinion ¶ 21 n.5.
                                                                                23




ALEXANDER, J., dissenting.

      [¶35] I respectfully dissent.

      [¶36] The post-conviction record in this appeal reveals a too common,

shotgun style approach to post-conviction advocacy. That approach challenges

many tactical choices by trial counsel—usually about things allegedly not done—

with the hope that, years after the events at issue, Monday morning quarterbacking

about one or a few of trial counsel’s many tactical choices will find a sympathetic

ear of a post-conviction court or an appellate court willing to second guess trial

counsel and order a new trial or a new hearing.

      [¶37] In its opinion the Court rejects the principal arguments asserted by

post-conviction counsel. The Court then takes a collateral argument about not

cross-examining the victim about inconsistent statements, revises post-conviction

counsel’s cross-examination argument to become an allegation that trial counsel

should have affirmatively presented witnesses to testify about the inconsistent

statements, purports to clarify the standard for post-conviction review of trial

counsel’s performance, and vacates the post-conviction court’s judgment.        To

vacate and announce its clarification of the law, the Court abandons a fundamental

principle of limited appellate review of trial court decisions and holds that when
                                                                                  24

the post-conviction court did not make findings on an issue, and none were

requested by counsel, the Court, contrary to convention, will infer that the

post-conviction court would have made erroneous statements of law had it

articulated the findings that were not requested.

      [¶38] The standard for post-conviction review of trial counsel’s tactical

choices was well stated in Strickland v. Washington, 466 U.S. 668, 689 (1984):

“Judicial scrutiny of counsel's performance must be highly deferential.”

Elaborating on that standard, the Strickland Court observed:

      It is all too tempting for a defendant to second-guess counsel’s
      assistance after conviction or adverse sentence, and it is all too easy
      for a court, examining counsel’s defense after it has proved
      unsuccessful, to conclude that a particular act or omission of counsel
      was unreasonable. . . . A fair assessment of attorney performance
      requires that every effort be made 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 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. . . .” There are countless ways to provide effective assistance
      in any given case. Even the best criminal defense attorneys would not
      defend a particular client in the same way. . . .

      The availability of intrusive post-trial inquiry into attorney
      performance or of detailed guidelines for its evaluation would
      encourage the proliferation of ineffectiveness challenges. Criminal
      trials resolved unfavorably to the defendant would increasingly come
      to be followed by a second trial, this one of counsel’s unsuccessful
      defense. Counsel’s performance and even willingness to serve could
                                                                                 25

      be adversely affected. Intensive scrutiny of counsel and rigid
      requirements for acceptable assistance could dampen the ardor and
      impair the independence of defense counsel, discourage the
      acceptance of assigned cases, and undermine the trust between
      attorney and client.

466 U.S. at 689-690 (internal citations omitted).

      [¶39] The record here does not demonstrate that Theriault, even with the

clarity of hindsight, has overcome the “strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance.” Id. 689.

                                I. CASE HISTORY

      [¶40] The case history is extensively stated in the Court’s opinion. Only the

key points related to the issues on post-conviction review are stated here.

      [¶41] On March 14, 2008, Mark Theriault drove the six-year-old victim and

her twenty-two-year-old sister to a nearby store. Theriault, who is not related to

the victim, invited the victim and her sister to return to his house. The sister

refused, but the victim was taken alone, by Theriault, to his house. There, the

victim took a bath, played a video game, and then was sexually assaulted. At the

2011 trial, the victim testified that sexual assault occurred in Theriault’s bedroom

after Theriault had removed her clothes.

      [¶42] Later on March 14, the victim returned home with wet hair and said

that she had taken a bath. When her sister asked about the wet hair, the victim

became quiet. Later, the victim’s sister asked if Theriault had seen the victim
                                                                                   26

naked and if Theriault had touched her “down there,” referring to the victim’s

genitals. Becoming emotional, the victim said that Theriault had seen her naked

and touched her.

      [¶43] The victim’s sister reported the disclosure to their mother, who then

drove the victim and her sister to a nearby hospital. The victim and her sister

continued to discuss the sexual assault during the ride. At the hospital, the victim

was assessed for purposes of medical treatment by a registered nurse. During the

evaluation, the victim told the nurse that after she had taken a bath, Theriault had

called her into the living room and touched her over her clothing “down there,”

which the victim identified by pointing toward her genitals. In closing argument at

the 2011 trial, trial counsel focused on the inconsistencies in the versions of events

the victim had testified to at trial, previously stated to her family, and previously

stated to the nurse at the hospital.

      [¶44]    The nurse at the hospital had referred the victim for a forensic

evaluation at The Spurwink Child Abuse Program, which specializes in pediatric

sexual abuse assessments and interviews. At Spurwink, a psychosocial evidentiary

assessment was conducted by a licensed clinical social worker.            The social

worker’s report was presented at the post-conviction hearing. The report stated

that during the interview of the victim conducted on March 25, 2008, “When asked

if somebody had done something to her that she does not like, [the victim] stated,
                                                                                  27

‘No.’” The report also stated, “When asked if [Theriault] does something that she

does not like, she stated, ‘Hmmm, no.’” According to the Spurwink report, the

victim also initially denied that anything had happened “to her privates.” The

victim then agreed that someone had touched her “privates” and, in response to a

series of questions, described at least one incident when Theriault sexually

assaulted her. No evidence about the Spurwink interview was presented at trial.

      [¶45] Theriault did not testify or present any evidence at trial. The jury

found him guilty. After sentencing, trial counsel filed a notice of appeal and an

application for leave to appeal the sentence. Theriault’s current post-conviction

attorney then entered his appearance. Trial counsel was given leave to withdraw.

Theriault’s application to allow an appeal from sentence was denied. After his

current counsel failed to file a brief, Theriault’s direct appeal was dismissed for

want of prosecution. The petition for post-conviction review was filed nearly a

year after the direct appeal was dismissed.

                 II. POST-CONVICTION COURT PROCEEDINGS

      [¶46]    In his post-conviction filings, and in advocacy before the

post-conviction court, Theriault asserted numerous claims of ineffective assistance

by trial counsel. The record indicates that the principal focus of advocacy before

the post-conviction court were claims that trial counsel had not (1) adequately

consulted with Theriault and prepared him to testify at trial; (2) asserted and
                                                                                                        28

presented evidence identifying the victim’s brother and step-father as alternative

suspects; and (3) sufficiently investigated the case and identified facts or expert

witnesses to support Theriault’s defense and attack the victim’s credibility.

        [¶47] The specific claims of ineffective assistance directed at trial counsel

in the post-conviction proceeding included:

        1. Insufficient pretrial communication and contacts with Theriault;

        2. Failure to prepare Theriault to testify and to allow Theriault to make a

rational decision to testify in his own defense;

        3. Failure to hire a private investigator to investigate his case and perhaps

develop evidence that the victim had a motive to lie and that the victim’s brother

and stepfather should be considered alternative suspects;

        4. Failure to call unnamed witnesses who allegedly would have testified to

inconsistences in the victim’s statements, without indication of who the witnesses

were or what they might have testified to;

        5. Failure to retain expert witnesses to (a) discuss the impact of suggestive

interview techniques on children, and (b) explain the significance of the lack of

physical findings of an assault; 15



   15
       The record does not disclose the basis for the claim that calling an expert witness to testify about
the lack of physical findings of an assault might have benefited the defense in an unlawful sexual contact
case. In such cases, testimony about the lack of physical findings indicating an assault usually is offered
by and benefits the State. Theriault’s claim on this point may be an example of making every conceivable
                                                                                                    29

       6. Failure to request an order to allow review of the victim’s alleged DHHS

records, but without any indication, by post-conviction counsel, that DHHS records

existed, or that, if they did exist, what relevant information they might contain;

       7. Failure to challenge the by then nine-year-old victim’s competency to

testify at trial, but without any indication of any basis that trial counsel or the trial

court might have had to question the victim’s competence at trial;

       8. Failure to call character witnesses to testify to Theriault’s good character

traits, although such evidence would have opened the door for the State to ask

questions about Theriault’s prior bad acts, including a Connecticut conviction for

child endangerment and a possible sexual assault charge in New Mexico;

       9. Failure to call a police officer who had recorded some inconsistent

statements from the victim and other family members, although such an inquiry

could have opened the door to the officer’s testimony about a conversation with

Theriault, in which Theriault admitted to unrelated criminal conduct in other states

and got into a heated argument with the officer “flip[ping] him off”;

       10. Failure to cross-examine the victim about her trial testimony that on the

day of the incident, she played a PlayStation video game at Theriault’s home, after

Theriault had informed trial counsel that he did not own a PlayStation; and



criticism about things that trial counsel allegedly failed to do in the hope that some claim might find
traction.
                                                                                 30

      11.     Failure to cross-examine the victim about the Spurwink interview

during which she initially stated that Theriault had not sexually assaulted her and

no one had touched her privates, but later stated that someone had touched her

privates and that Theriault had sexually assaulted her.

      [¶48] On this last point, Theriault’s brief to the post-conviction court, his

memorandum to us in support of allowing this appeal, M.R. App. P. 19(c), and his

brief to us on appeal, each, using nearly identical language, argued only that trial

counsel should have cross-examined the victim about her statements made during

the Spurwink interview.      Theriault’s only argument regarding the Spurwink

interview, in his brief to us, is under a heading “Cross-examination of [the

victim].” There Theriault argues, after referencing the Spurwink interview, that

“[t]rial counsel utterly failed in this most basic role of cross-examining a

complainant.”     None of Theriault’s advocacy suggested, as the Court now

determines, that trial counsel may have erred by not affirmatively presenting a

witness describing the victim’s inconsistent statements in the Spurwink interview.

      [¶49]     The trial transcript indicates that at trial, Theriault’s counsel

questioned the State’s witnesses about inconsistencies between the victim’s trial

testimony and her prior statements to family members and personnel at the local

hospital. Trial counsel’s examination of the State’s witnesses also raised the issue

of whether the witnesses’ questioning of the victim may have suggested or
                                                                                                   31

prompted her statements that Theriault had sexually assaulted her. In closing

arguments, trial counsel argued that reasonable doubt about guilt was created by

the inconsistencies in the victim’s trial testimony and her prior statements and by

the possible influence the questions she was asked on the evening of the event may

have had on her statements.

        [¶50]    Trial counsel’s reasons for not cross-examining the victim more

extensively were demonstrated at the post-conviction hearing. There, trial counsel

testified that, while the victim was testifying, he could see members of the jury

making a connection with her and that some jurors were crying. Consequently,

trial counsel testified, he decided it was most important to limit cross-examination

of the victim to get her off the stand as quickly as possible.

        [¶51] Trial counsel’s choice to limit cross-examination of the victim in light

of his concerns about jury sympathy for the victim cannot be characterized as

ineffective     assistance—a         deficiency       indicating      “serious      incompetency,

inefficiency, or inattention of counsel amounting to performance . . . below what

might be expected from an ordinary fallible attorney,” Aldus v. State, 2000 ME 47,

¶ 12, 748 A.2d 463.16 As a nationally respected text on trial advocacy by a Maine



   16
        The post-conviction court referenced the same standard for determining ineffective assistance,
citing Strickland v. Washington, 466 U.S. 668 (1984), and Lang v. Murch, 438 A.2d 914, 915 (Me. 1981),
one of our earlier post-conviction opinions that used nearly identical language.
                                                                                  32

author notes, sometimes the best cross-examination is no cross-examination at

all.17

                          III. THE STRICKLAND TWO-PART TEST

          [¶52]      The Court’s opinion states: “To prevail in a post-conviction

proceeding based on an alleged constitutional deprivation of counsel, the petitioner

must demonstrate two points: first, ‘that counsel’s representation fell below an

objective standard of reasonableness,’ and second, that ‘errors of counsel . . .

actually had an adverse effect on the defense.’” (¶ 14, citing and quoting

Strickland).

          [¶53] Previously, we have described the petitioner’s burden on ineffective

assistance of counsel claims as a two-part test: “First, we consider ‘whether there

has been serious incompetency, inefficiency, or inattention of counsel amounting

to performance . . . below what might be expected from an ordinary fallible

attorney.’ Second, we determine ‘whether any such ineffective representation

likely deprived the defendant of an otherwise available substantial ground of

defense.’” Gauthier v. State, 2011 ME 75, ¶ 12, 23 A.3d 185 (citations omitted).

See also Strickland, 466 U.S. at 686, noting that the “prejudice” or “adverse effect”

test involves an inquiry into whether “counsel’s conduct so undermined the proper



   17
         Peter L. Murray, Basic Trial Advocacy, 157-158 (1995).
                                                                                                    33

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.”

        [¶54] Following this general observation, the Strickland opinion articulates

its widely used two-part test:

        A convicted defendant’s claim that counsel’s assistance was so
        defective as to require reversal of a conviction or death sentence has
        two components. First, the defendant must show that counsel’s
        performance was deficient. This requires showing that counsel made
        errors so serious that counsel was not functioning as the “counsel”
        guaranteed the defendant by the Sixth Amendment. Second, the
        defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel's errors were so serious
        as to deprive the defendant of a fair trial, a trial whose result is
        reliable. Unless a defendant makes both showings, it cannot be said
        that the conviction or death sentence resulted from a breakdown in the
        adversary process that renders the result unreliable.

Id. 687.18

               IV. REVIEW OF THE POST-CONVICTION DECISION

        [¶55] A post-conviction petition must be denied if the petitioner fails to

maintain his or her burden to demonstrate entitlement to relief on either element of

the two-part test.          Here, the post-conviction court, without reaching the

competence of counsel issue, decided that its “analysis of the prejudice prong is

determinative of this petition.” The post-conviction court stated generally, “If a

post-conviction petitioner proves ineffective assistance, he must also demonstrate

   18
        Strickland was a death penalty case that included claims of incompetence of counsel in both the
trial and the sentencing phase of the case.
                                                                                  34

that the outcome of the proceedings would have been different but for counsel’s

performance,” a statement with which the Court takes issue.

      [¶56]   The post-conviction court then proceeded to address many of

Theriault’s specific challenges, finding, in each instance, that Theriault had not

demonstrated prejudice—the term drawn from Strickland—resulting from trial

counsel’s allegedly inadequate representation of him. The record indicates that for

many of Theriault’s challenges, Theriault had offered no evidence whatsoever of

how he was prejudiced by the alleged failures to hire a private investigator,

investigate to find alternative suspect evidence, retain experts, or call unnamed

witnesses to demonstrate additional inconsistencies in the victim’s testimony.

      [¶57] On Theriault’s challenges (1) through (9), listed above, the Court

concludes, and I agree, that: “Theriault failed to demonstrate entitlement to

post-conviction relief regardless of how one might characterize the element of

prejudice, because the complete absence of any evidence of prejudice would

preclude any prospect of proving that the guilty verdict was unreliable and not

entitled to confidence.” Court’s Opinion ¶ 26.

      [¶58] That leaves for decision only issues (10), the failure to inquire further

about the victim’s statement that she had used a PlayStation video game at

Theriault’s home, and (11), the failure to cross-examine the victim about the

inconsistencies in her statements during the Spurwink interview.           Revising
                                                                                   35

Theriault’s argument, the Court recharacterizes issue (11) from a failure to

cross-examine to a failure to present evidence, presumably by calling a witness

from Spurwink to testify about the victim’s inconsistent statements in the

Spurwink interview. The Court then decides on these two points, points that were

not the primary points argued to the post-conviction court, that the post-conviction

court’s improper wording of its decision as to the PlayStation issue is enough to

require that the judgment be vacated.

      [¶59] On the PlayStation issue, the record has gaps identical to those the

Court identifies in rejecting claims (1) through (9). The record does not indicate

how evidence that Theriault did not have a PlayStation video game in his home

could have been presented except (1) through further cross-examination of the

victim—a tactical choice properly rejected based on the jury’s perceived

sympathetic reaction to the victim, or (2) by calling Theriault to the stand, contrary

to the tactical decision approved by the post-conviction court and affirmed in the

Court’s opinion. The record is silent as to whether Theriault may have had other

video games in his home and whether the nine-year-old victim, recalling playing a

video game when she was six, used the term “PlayStation” as a generic reference

to any video game, or whether she recognized and recalled the exact model of the

game she was playing.
                                                                                   36

       [¶60] The post-conviction court rejected the PlayStation challenge, noting

that at trial evidence was presented that the victim told the nurse that Theriault had

touched her over her clothing, which was inconsistent with the victim’s trial

testimony that she was not wearing clothes at the time of the assault.            The

post-conviction court found that because the jury appeared to have accepted the

victim’s testimony despite her contradictory statements about the incident itself,

evidence on a collateral issue, that Theriault did not have a PlayStation or other

video game—if that evidence existed—was not “likely to have produced a

different result.”

       [¶61] The Court characterizes this statement as an erroneous “outcome

determinative test” justifying vacating the judgment. Court’s Opinion ¶ 27. But

the Court approves the post-conviction court’s rejection of the nine other claims,

using similar, allegedly flawed language, where, like the PlayStation claim, there

was no evidentiary support for entitlement to relief, regardless of how one

characterized the element of prejudice. The record lacks any indication of how the

PlayStation evidence, if it existed, might have been presented, or how the tactical

choice not to cross-examine the victim about the presence of some video game “so

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
                                                                                37

      [¶62]    The Court’s ruling on the absence of Spurwink statement

cross-examination, as post-conviction counsel characterized it, or the absence of

Spurwink statement evidence, as the Court recharacterizes counsel’s argument, is

based on an even thinner reed.

      [¶63] As the Court’s opinion correctly recognizes: “The [post-conviction]

court did not discuss this [Spurwink] evidence in its order, and neither party

requested that the court issue findings on the issue.” Court’s Opinion ¶ 28. Thus,

there is no improper use of words in the post-conviction court’s finding on this

issue, and the lack of a request for findings suggests the limited attention the

post-conviction court and Theriault gave to this issue in the post-conviction

proceedings.

      [¶64] “In those circumstances”, the Court’s opinion states, “we ordinarily

would infer that a court made factual findings sufficient to support its ultimate

conclusion.” Court’s Opinion ¶ 28. That principle is well established in the

jurisprudence of appellate review. See Pelletier v. Pelletier, 2012 ME 15, ¶ 20,

36 A.3d 903; Sutherland v. Morrill, 2008 ME 6, ¶¶ 4-5, 940 A.2d 192; Lyons v.

Baptist Sch. of Christian Training, 2002 ME 137, ¶ 13, 804 A.2d 364; State v.

Dodd, 503 A.2d 1302, 1307 (Me. 1986) (stating that when there has been no

request for findings of fact pursuant to M.R. Civ. P. 52(a), or M.R. Crim. P. 23(c)

(now M.R.U. Crim. P. 23(c)), we will infer that the trial court found all the facts
                                                                                  38

necessary to support its judgment, if those inferred findings are supportable by the

evidence in the record).

      [¶65] In its opinion, the Court abandons this sound principle of appellate

review, stating: “In the specific circumstances of this case, however, the legitimacy

of that inference is undermined, because it would attribute to the court the use of a

legal principle that it misstated several times in its order.” Court’s Opinion ¶ 28.

The Court’s “several times” reference must be to portions of the post-conviction

order that it affirms or to the post-conviction court’s single comment deciding the

PlayStation issue.

                             V. LEGAL ANALYSIS

      [¶66] As the Strickland opinion states, the post-conviction review process is

not an invitation to revisit and second-guess trial tactics that, in hindsight, have

proved unsuccessful. 466 U.S. at 689. Although not completely insulated from

review, strategic and tactical decisions of trial attorneys deserve significant

deference. Id. To demonstrate that an attorney’s trial tactics were sufficiently

ineffective to justify vacating a conviction, such decisions must be proved to have

been “manifestly unreasonable,” Pineo v. State, 2006 ME 119, ¶ 13, 908 A.2d 632,

indicating “serious incompetency, inefficiency, or inattention of counsel

amounting to performance . . . below what might be expected from an ordinary

fallible attorney.” Aldus, 2000 ME 47, ¶ 12, 748 A.2d 463.
                                                                                39

      [¶67] In appellate review of a post-conviction court’s findings, the facts

underlying the trial and post-conviction hearing are viewed in the light most

favorable to the post-conviction court’s judgment.            Lamarre v. State,

2013 ME 110, ¶ 2, 82 A.3d 845; Heon v. State, 2007 ME 131, ¶ 5, 931 A.2d 1068.

Further, “[w]e will not overturn a post-conviction court’s determination as to the

effectiveness of trial counsel unless it is clearly erroneous and there is no

competent evidence in the record to support it. Likewise, the finding of whether

the petitioner was prejudiced by his attorney’s error is a factual finding reviewed

for clear error.” Gauthier, 2011 ME 75, ¶ 13, 23 A.3d 185.

      [¶68] Thus, unless unsupported in the record, and there is no suggestion of

that, we must accept the facts as the post-conviction court found them, and

construe them most favorably to the post-conviction court’s decision.

      [¶69] The Court determines that the post-conviction court erred, and its

judgment must be vacated because, for the PlayStation issue, the post-conviction

court did not consider, or for the Spurwink issue, the Court infers that it did not

consider, whether there was a “reasonable probability” that “the guilty verdict and

resulting conviction were unreliable and not worthy of confidence.”        Court’s

Opinion ¶ 25 (citing Strickland, 466 U.S. at 693).

      [¶70] Regardless of whether one utilizes the Court’s articulation of the

Strickland standard quoted from page 693 in Strickland, or the standard actually
                                                                                    40

stated in Strickland, at 687, quoted above in this opinion at ¶ 54, the Court’s

opinion disregards the insignificance of the issues the Court relies on to vacate the

judgment.

      [¶71]    The victim’s “PlayStation” reference at trial, and Theriault’s

allegation that there was no PlayStation in his home, was irrelevant to the victim’s

credibility—or any other trial issue— because there was no evidence that (1) the

victim’s reference at trial to what she played with when she was six was

product-specific, not generic; or (2) a witness was available to testify at trial that,

three years prior to trial, there was no PlayStation or other video game in

Theriault’s home.

      [¶72] Without such evidence, Theriault failed to establish any “reasonable

probability” that trial counsel’s tactics regarding the PlayStation issue were enough

to “undermine the confidence in the outcome” of the trial. Just as it determined the

first nine challenges, the Court should determine, as a matter of law, that on this

irrelevant or insignificant issue, Theriault has failed to demonstrate either

incompetence of counsel or prejudice entitling him to post-conviction relief.

      [¶73]   That leaves only the issue of the inconsistent statements in the

Spurwink interview. If this is a lack of cross-examination of the victim issue, as

post-conviction counsel characterized it, then, as discussed above, no

ineffectiveness of counsel is demonstrated in the tactical choice not to examine the
                                                                                   41

victim extensively after observing the jury’s reaction to the victim.           If no

ineffectiveness is demonstrated, the prejudice issue, regardless of how the

post-conviction court characterized it, is not reached.

      [¶74] If the issue is as the Court characterizes it, whether Theriault was

prejudiced by trial counsel’s “failure to present any evidence of the prior

exculpatory statements made by the victim during the Spurwink evaluation, when

she reportedly said that no one—including Theriault—had done anything to her

that she did not like, and, more specifically, that Theriault had not sexually

assaulted her,” Court’s Opinion ¶ 28, there are still no grounds to vacate, even if

we assume, as the Court apparently does, that this “evidence” issue, though not

argued by counsel, was timely asserted and preserved.

      [¶75]    On this issue, the Court should not create an exception to its

well-accepted principle of appellate review that, absent a request for findings, it

will infer that a trial court properly made factual findings sufficient to support its

ultimate conclusion on an issue before it. Even if the Court is ready to infer error

when it should not, there still can be no “reasonable probability” that the tactical

choice not to call the Spurwink witness was enough to “undermine the confidence

in the outcome” of the trial.

      [¶76] The Spurwink evidence would have to have been presented through a

live witness who had treated the victim, not a copy of a report, as was offered in
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the post-conviction hearing. The post-conviction court would have known there

was good reason for the defense to avoid the Spurwink witness in this case.

Contrary to the statement in the Court’s Opinion ¶ 28, the Spurwink witness’s

testimony would not have been limited to “the prior exculpatory statements made

by the victim during the Spurwink evaluation.”               After presenting those

“exculpatory” statements, the witness, in response to cross-examination by the

State, would certainly have testified to the statements by the victim that she had

been sexually assaulted by Theriault.

      [¶77]     In the artificial world of post-conviction Monday morning

quarterbacking, it is certainly not out of bounds to allege that, as a tactic to attack

the victim’s credibility, the Spurwink witness should have been called by the

defense at trial. But in the real world of a criminal trial, defense counsel’s calling

this Spurwink witness may itself have demonstrated incompetence of counsel. To

quote the Strickland standard itself, certainly the choice not to call this likely

adverse witness was not an error “so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” 466 U.S. at 687. The record demonstrates

neither incompetence of counsel, nor prejudice to undermine the confidence in the

outcome of the trial in the tactical choice not to call the Spurwink witness. This

issue, even if characterized as failure to present evidence, rather than failure to

cross-examine the victim, does not justify vacating the judgment.
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                                    VI. CONCLUSION

        [¶78] Throughout its opinion addressing Theriault’s many complaints about

trial counsel’s tactical choices, the post-conviction court may not, in each instance,

have perfectly phrased its findings and conclusions. But in its opinion, and in its

result, the post-conviction court committed no error. And it certainly committed

no error in addressing the two collateral issues of trial tactics that the Court seizes

upon to vacate the judgment. Neither of these issues is sufficient to undermine

confidence in the outcome of the trial. I would affirm the post-conviction court’s

judgment in its entirety.



On the briefs and at oral argument:

        Richard L. Hartley, Esq., Law Office of Richard L. Hartley, P.C., Bangor,
        for appellant Mark J. Theriault

        Todd R. Collins, District Attorney, 8th Prosecutorial District, Caribou, for
        appellee State of Maine



Aroostook County Superior Court (Caribou) docket number CR-2012-437
FOR CLERK REFERENCE ONLY
