MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	92	
Docket:	   Fra-17-502	
Argued:	   June	12,	2018	
Decided:	  July	5,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                   JOHN	FAHNLEY	
                                          	
                                         v.	
                                          	
                                  STATE	OF	MAINE	
	
	
JABAR,	J.		

      [¶1]	 	 The	 State	 of	 Maine	 appeals	 from	 a	 judgment	 of	 the	 trial	 court	

(Franklin	County,	Mills,	J.)	granting	John	Fahnley’s	petition	for	post-conviction	

review	 and,	 pursuant	 to	 15	 M.R.S.	 §	 2130	 (2017),	 vacating	 his	 conviction	 of	

sexual	abuse	of	a	minor	(Class	C),	17-A	M.R.S.	§	254(1)(A-2)	(2017).		The	court	

found	 that	 Fahnley	 had	 been	 deprived	 of	 the	 effective	 assistance	 of	 counsel	

during	his	criminal	trial.		Because	we	conclude	that	the	court’s	factual	findings	

are	supported	by	competent	record	evidence,	we	affirm	the	judgment.				
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                                 I.		BACKGROUND	

      [¶2]	 	 The	 post-conviction	 court	 made	 the	 following	 factual	 findings,	

which	 are	 supported	 by	 competent	 evidence	 in	 the	 record.	 	 See	 Middleton	

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

      [¶3]		In	2013,	Fahnley	was	indicted	for	one	count	of	gross	sexual	assault	

(Class	A),	17-A	M.R.S.	§	253(1)(A)	(2017),	and	two	counts	of	sexual	abuse	of	a	

minor	(Class	C),	17-A	M.R.S.	§	254(1)(A-2).		In	2014,	a	jury	found	Fahnley	guilty	

of	one	count	of	sexual	abuse	of	a	minor	and	not	guilty	of	the	other	two	counts.		

We	 affirmed	Fahnley’s	conviction	in	2015,	State	v.	Fahnley,	2015	ME	 82,	¶	 1,	

119	A.3d	727,	after	which	Fahnley	filed	a	petition	for	post-conviction	review	in	

the	Superior	Court,	alleging	that	he	was	deprived	of	the	effective	assistance	of	

counsel	at	trial.		In	his	petition,	Fahnley	asserted	that	he	received	ineffective	

assistance	 because	 trial	 counsel	 (1)	 failed	 to	 present	 exculpatory	 evidence,	

including	 medical	 records	 and	 credit	 card	 records;	 (2)	 failed	 to	 present	

witnesses	for	the	defense;	and	(3)	notified	him	in	a	letter	shortly	before	trial	

that	 certain	 evidence	 would	 be	 presented,	 but	 then	 failed	 to	 present	 the	

evidence	and	failed	to	discuss	that	decision	with	him.			

      [¶4]	 	 After	 a	 hearing,	 the	 court	 granted	 Fahnley’s	 petition	 for	

post-conviction	review	and	vacated	the	conviction	of	sexual	abuse	of	a	minor	
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because	it	found	that	Fahnley	had	been	deprived	of	the	effective	assistance	of	

counsel.	 	 In	 its	 order,	 the	 court	 made	 the	 following	 findings,	 all	 of	 which	 are	

supported	by	evidence	presented	at	the	post-conviction	hearing.	

       [¶5]		Fahnley,	a	musician	and	photographer,	was	once	in	a	band	with	the	

alleged	victim’s	father.		The	allegations	against	Fahnley	involved	sexual	contact	

with	 the	 alleged	 victim	 in	 Fahnley’s	 Maine	 home.	 	 At	 trial,	 the	 alleged	 victim	

testified	that	he,	his	brother,	and	Fahnley	drove	to	Fahnley’s	house	in	Madrid,	

Maine,	 from	 the	 alleged	 victim’s	 family	 home	 in	 western	 Massachusetts	 in	

mid-August	 of	 2008,	 sometime	 between	 August	 9th	 and	 September	 3rd.		

Fahnley	then	drove	the	boys	back	to	Massachusetts,	where	the	alleged	victim	

got	 into	 an	 argument	 with	 his	 mother,	 so	 he	 returned	 to	 Maine	 alone	 with	

Fahnley.		He	testified	that	it	was	at	this	point—when	he	was	alone	with	Fahnley	

in	 Maine	 during	 the	 middle	 of	 August	 of	 2008—that	 the	 sexual	 abuse	

underlying	the	Class	C	conviction	occurred.			

       [¶6]		During	the	two	years	before	trial,	Fahnley	“performed	considerable	

legwork”	in	the	preparation	of	his	case.		He	obtained	his	medical	and	financial	

records	 and	 identified	 potential	 witnesses,	 all	 of	 which	 would	 have	 been	

relevant	to	establish	his	whereabouts	during	August	of	2008—the	time	period	

that	was	primarily	relevant	to	the	charges	against	him.		In	the	weeks	leading	up	
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to	trial,	Fahnley	“became	distressed	because	trial	counsel	was	not	doing	what	

[he]	had	requested”	and	ultimately	engaged	the	services	of	another	attorney,	

who	 was	 unable	 to	 represent	 Fahnley	 due	 to	 his	 inexperience	 in	 the	 area	 of	

criminal	law.			

      [¶7]		In	January	of	2014,	a	few	weeks	before	the	trial	was	set	to	begin,	

trial	counsel	addressed	Fahnley’s	concerns	in	a	letter.		Among	other	things,	trial	

counsel	 wrote	 that	 he	 intended	 to	 address	 the	 alleged	 victim’s	 inconsistent	

statements,	intended	to	use	Fahnley’s	medical	records,	intended	to	introduce	

photographs	to	show	that	the	alleged	victim	had	not	been	alone	in	Maine	with	

Fahnley,	 and	 intended	 to	 introduce	 Fahnley’s	 credit	 card	 billing	 records	 to	

undermine	the	alleged	victim’s	timeline	of	events.		He	also	wrote	that	he	was	

attempting	to	speak	to	Fahnley’s	doctor	in	order	to	determine	what	potential	

testimony	she	could	offer	on	his	behalf.			

      [¶8]		During	the	alleged	victim’s	testimony	at	trial,	he	made	statements	

that	 significantly	 contradicted	 the	 statements	 he	 had	 made	 during	 his	 initial	

interview	with	a	Massachusetts	detective,	when	he	first	reported	the	abuse	in	

2011,	and	those	statements	he	made	during	a	subsequent	interview	conducted	

by	a	Franklin	County	detective	in	Maine.		Although	trial	counsel	had	concluded	

that	the	State’s	case	would	be	based	entirely	on	the	alleged	victim’s	credibility	
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because	of	the	absence	of	forensic	evidence	or	witnesses	to	the	alleged	abuse,	

counsel	merely	refreshed	the	alleged	victim’s	recollection	with	the	inconsistent	

statements.		Despite	the	pronounced	and	substantive	disparities	between	the	

statements,	 trial	 counsel	 did	 not	 attempt	 to	 have	 the	 prior	 inconsistent	

statements	read	into	the	record	or	otherwise	admitted	in	evidence.			

      [¶9]	 	 Trial	 counsel	 also	 listed	 Fahnley’s	 mother’s	 portfolio	 manager	 on	

the	defense’s	witness	list	but	did	not	call	him	to	testify	at	trial.		According	to	the	

portfolio	 manager’s	 testimony	 at	 the	 post-conviction	 proceeding,	 he	 told	

Fahnley	that	Fahnley’s	financial	support	of	the	alleged	victim’s	family—which	

had	been	occurring	for	years	in	the	range	of	$2,000	to	$4,000	monthly—needed	

to	cease	because	it	was	not	sustainable.		The	alleged	victim’s	family	was	“angry	

and	under	financial	strain”	when	Fahnley	stopped	the	payments	because	the	

financial	support	from	Fahnley	was	the	family’s	only	source	of	income.		Despite	

his	presence	in	court	on	the	first	day	of	the	trial	and	his	willingness	to	testify,	

the	portfolio	manager	was	not	called	to	testify	at	the	underlying	criminal	trial	

regarding	 the	 specifics	 of	 Fahnley’s	 financial	 situation	 or	 the	 impetus	 for	 the	

cessation	of	financial	contributions	to	the	alleged	victim’s	family.			

      [¶10]	 	 Two	 other	 witnesses	 could	 have	 presented	 partial	 alibis	 for	

Fahnley	 during	 August	 of	 2008.	 	 Neither	 was	 listed	 as	 a	 potential	 witness	 or	
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called	at	trial,	but	both	were	available	to	testify	about	Fahnley’s	whereabouts	

during	August	of	2008.		Although	counsel	did	speak	with	one	of	the	witnesses,	

he	failed	to	interview	the	other.		Trial	counsel	decided	not	to	introduce	any	of	

this	 evidence	 because	 he	 was	 concerned	 that	 an	 “imperfect	 alibi”—where	

neither	witness	could	account	for	all	of	Fahnley’s	time	during	August	of	2008—

would	undermine	the	defense.			

      [¶11]		Counsel	also	did	not	present	credit	card	billing	records	that,	along	

with	 the	 dates	 of	 Fahnley’s	 frequent	 medical	 appointments,	 would	 have	

accounted	 for	 Fahnley’s	 whereabouts	 on	 many	 of	 the	 days	 during	 August	 of	

2008.		The	credit	card	records	would	have	shown	Fahnley’s	travels	to	Boston	

for	music	and	photography	and	in	and	around	Maine.		The	records	would	have	

shown	no	trips	to	the	alleged	victim’s	family	home	in	western	Massachusetts	in	

mid-August.			

      [¶12]		At	the	post-conviction	hearing,	trial	counsel	testified	that	he	could	

not	remember	what	changed	between	the	time	he	wrote	the	letter	and	the	time	

of	the	trial,	when	he	ultimately	did	not	present	the	evidence	discussed	in	the	

letter.		He	testified	that	he	believed	that	the	State’s	case	had	been	presented	as	

favorably	to	the	defense	as	he	could	have	expected	and	that	he	was	concerned	
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with	presenting	additional	evidence	that	the	State	could	then	use	against	the	

defense.			

      [¶13]		Fahnley	testified	at	the	post-conviction	hearing	that	he	was	very	

involved	 in	the	case	from	the	beginning	and	that	he	brought	 all	of	the	 above	

evidence	to	trial	counsel’s	attention	prior	to	trial.		He	testified	that	he	expected	

counsel	 to	 introduce	 the	 credit	 card	 records;	 that	 he	 had	 wanted	 all	 of	 the	

witnesses	he	identified	to	testify;	and	that	when	counsel	did	not	present	that	

evidence,	 he	 was	 “flabbergasted.”	 	 He	 would	 have	 hired	 a	 third	 attorney	 had	

time	permitted	him	to	do	so.			

      [¶14]		After	a	thorough	discussion	of	the	relevant	law,	the	post-conviction	

court	 ultimately	 found	 that	 Fahnley	 had	 been	 deprived	 of	 the	 effective	

assistance	 of	 counsel	 because	 trial	 counsel	 (1)	 failed	 to	 interview	 witnesses,	

which	 constituted	 a	 failure	 to	 make	 a	 reasonable	 investigation;	 (2)	failed	 to	

present	potentially	exculpatory	evidence,	even	after	counsel	notified	Fahnley	

that	he	would	present	that	evidence;	and	(3)	failed	to	consult	with	Fahnley	with	

regard	to	overarching	defense	strategy.		The	court	placed	significant	weight	on	

counsel’s	 “abandon[ment	 of]	 the	 defense	 he	 discussed	 with	 petitioner,	 the	

defense	[that]	petitioner	developed	and	wanted	presented	to	the	jury,”	without	

consulting	 Fahnley.	 	 The	 court	 found	 that	 the	 defense	 had	 been	 prejudiced	
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because,	in	sum,	the	“witnesses	and	evidence	available	to	support	petitioner’s	

defense	that	neither	he	nor	the	victim	were	where	the	victim	alleged	were	not	

offered,”	and	the	“witnesses	and	evidence	that	provided	a	motive	for	the	victim	

and	his	family	to	retaliate	against	petitioner	were	not	offered.”			

      [¶15]	 	 After	 the	 court	 granted	 Fahnley’s	 petition	 for	 post-conviction	

review	 and	 vacated	 his	 conviction,	 the	 State	 timely	 appealed.	 	 See	 15	 M.R.S.	

§	2131(2)	(2017);	M.R.	App.	P.	2B(b)(1).	

                                    II.		DISCUSSION	

A.	   Standard	of	Review		

	     [¶16]	 	 We	 apply	 “a	 deferential	 standard	 of	 review	 to	 the	 findings	 of	 a	

post-conviction	 court,”	 and	 we	 “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.”		

Pineo	 v.	 State,	 2006	 ME	 119,	 ¶	11,	 908	 A.2d	 632	 (quotation	 marks	 omitted).		

“[T]he	facts	found	regarding	both	the	underlying	trial	and	the	post-conviction	

hearing	 are	 viewed	 in	 the	 light	 most	 favorable	 to	 the	 post-conviction	 court’s	

judgment.”		Philbrook	v.	State,	2017	ME	162,	¶	9,	167	A.3d	1266.		“On	review	

after	a	hearing	in	which	the	court	has	stated	its	findings,	and	there	has	been	no	

motion	 for	 further	 findings,	 we	 will	 infer	 that	 the	 court	 found	 all	 the	 facts	
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necessary	to	support	its	judgment	if	those	inferred	findings	are	supportable	by	

evidence	in	the	record.”		Id.	(quotation	marks	omitted).		Thus,	in	order	for	the	

State	 to	 prevail,	 we	 would	 have	 to	 conclude	 that	 the	 record	 is	 devoid	 of	any	

competent	evidence	to	support	the	court’s	finding.	

B.	   Ineffective	Assistance	of	Counsel		

	     [¶17]	 	 Article	 I,	 section	 six	 of	 the	 Maine	 Constitution	 and	 the	 Sixth	

Amendment	 to	 the	 United	 States	 Constitution	 establish	 that	 defendants	 in	

criminal	 proceedings	 are	 entitled	 to	 receive	 the	 effective	 assistance	 of	 an	

attorney	 at	 trial.	 	 McGowan	 v.	 State,	 2006	 ME	 16,	 ¶	 9,	 894	 A.2d	 493.	 	 When	

confronted	 with	 claims	 of	 ineffective	 assistance	 of	 counsel,	 we	 employ	 a	

two-part	 analysis	 to	 determine	 “(1)	 whether	 counsel’s	 representation	 fell	

below	 an	 objective	 standard	 of	 reasonableness	 and	 (2)	whether	 errors	 of	

counsel	 actually	 had	 an	 adverse	 effect	 on	 the	 defense.”	 	 Fortune	 v.	 State,	

2017	ME	61,	¶	9,	158	A.3d	512	(alteration	omitted)	(quotation	marks	omitted)	

(citing	 Strickland	 v.	 Washington,	 466	U.S.	 668,	 698	 (1984);	 Theriault	 v.	 State,	

2015	 ME	 137,	 ¶¶	 13-14,	 125	 A.3d	 1163).	 	 Together,	 the	 two	 prongs	 of	 this	

case-by-case,	fact-driven	analysis,	see	McGowan,	 2006	ME	 16,	¶	12,	 894	A.2d	

493,	require	a	“showing	that	counsel’s	errors	were	so	serious	as	to	deprive	the	
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defendant	of	a	fair	trial,	a	trial	whose	result	is	reliable,”	Strickland,	466	U.S.	at	

687.			

          [¶18]		“As	to	the	first	part	of	the	Strickland	test,	counsel’s	representation	

of	 a	 defendant	 falls	 below	 the	 objective	 standard	 of	 reasonableness	 if	 it	 falls	

below	what	might	be	expected	from	an	ordinary	fallible	attorney.”		Philbrook,	

2017	 ME	 162,	 ¶	 7,	 167	 A.3d	 1266	 (quotation	 marks	 omitted).	 	 “To	 establish	

prejudice—the	 second	 part	 of	 the	 Strickland	 test—the	 post-conviction	

petitioner	 must	 prove	 that	 there	 is	 a	 reasonable	 probability	 that,	 but	 for	

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

different,	meaning	that	the	ineffective	assistance	of	counsel	rose	to	the	level	of	

compromising	the	reliability	of	the	conviction	and	undermining	confidence	in	

it.”		Id.	¶	8	(quotation	marks	omitted).		

          [¶19]		In	this	case,	the	court’s	finding	that	Fahnley	had	been	deprived	of	

the	 effective	 assistance	 of	 counsel	 at	 trial	 is	 supported	 by	 an	 abundance	 of	

competent	 record	 evidence.	 	 Although	 the	 State’s	 argument—that	 there	 is	

evidence	in	the	record	to	support	some	of	the	tactical	decisions	made	by	defense	

counsel—may	 have	 some	 merit,	 that	 is	 not	 the	 standard	 that	 guides	 our	

analysis.	 	 Because	 the	 court’s	 findings	 regarding	 ineffective	 assistance	 are	

supported	 by	 competent	 record	 evidence—including	 ample	 support	 for	 its	
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findings	 regarding	 trial	 counsel’s	 failure	 to	 interview	 witnesses,	 failure	 to	

present	 exculpatory	 evidence,	 and	 failure	 to	 communicate	 with	 his	 client	

regarding	overarching	defense	strategy—we	affirm	the	judgment.			

         The	entry	is:	
         	
                     Judgment	affirmed.		
	
	     	      	      	      	      	
	
Andrew	S.	Robinson,	District	Attorney,	Joshua	W.	Robbins,	Asst.	Dist.	Atty.,	and	
Michael	 B.	 Dumas,	 Asst.	 Dist.	 Atty.	 (orally),	 Office	 of	 the	 District	 Attorney,	
Farmington,	for	appellant	State	of	Maine	
	
Luke	 S.	 Rioux,	 Esq.	 (orally),	 and	 Valerie	 A.	 Randall,	 Esq.,	 Rioux,	 Donahue,	
Chmelecki	&	Peltier,	Portland,	for	appellee	John	Fahnley	
	
	
Franklin	County	Unified	Criminal	Docket	docket	number	CR-2016-666	
FOR	CLERK	REFERENCE	ONLY	
	
