MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision:    2019 ME 113
Docket:      Cum-18-432
Submitted
  On Briefs: May 30, 2019
Decided:     July 18, 2019

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



                                       ROBERT GOGUEN

                                                 v.

                                         JON HADDOW


SAUFLEY, C.J.

         [¶1] Robert Goguen appeals from a judgment of the Superior Court

(Cumberland County, Mills, J.) dismissing, for failure to state a claim, his

complaint alleging professional malpractice and related causes of action arising

from Jon Haddow’s legal representation of him in federal criminal proceedings.

We affirm the judgment.

         [¶2] The federal proceedings at issue here began in January 2011 when

Goguen was indicted in the United States District Court for the District of Maine

for knowingly failing to register as a sex offender.1 See 18 U.S.C.S. § 2250(a)

(LEXIS through Pub. L. No. 116-19). Goguen, represented by other counsel,



  1   Goguen was convicted of sexual assault in the second degree in Connecticut in 1996.
2

pleaded guilty to the federal charge, admitting in open court that he had

knowingly failed to update his registration.

      [¶3] At the same time, Goguen was facing state charges filed in 2010 in

Maine for unlawful sexual contact with a minor (Class B), 17-A M.R.S.

§ 255-A(1)(E-1) (2018). He was represented by another attorney on those

charges. It was understood that the state charge could be used by the federal

government to enhance the federal sentence.

      [¶4] In October 2011, Goguen, personally and not through counsel, filed

a motion in federal court asking for his then counsel to withdraw and seeking

to withdraw his plea of guilty to the charge of failing to register.       That

December, the court (J. Woodcock, J.) granted Goguen’s motion allowing his

counsel to withdraw and appointed Haddow to represent Goguen.

      [¶5] In May 2012, Goguen withdrew his motion to withdraw the guilty

plea in the federal prosecution for failure to register, and the state charge of

unlawful sexual contact with a minor was dismissed in July 2012 on the ground

that Goguen was “being sentenced in Federal Court.”

      [¶6] At Goguen’s September 2012 federal sentencing hearing on the

failure to register charge, the court informed Goguen, thoroughly and in great

detail, of the possible consequences of his decision whether to admit or proceed
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to trial on the allegation that he had committed a sex offense while in failure to

register status—a fact that, if proved, would generate a federal sentencing

enhancement. Following that explanation, the court afforded Goguen another

hour to consult with Haddow. After consulting with Haddow, Goguen stated in

open court that he did not dispute that he had committed a sex offense while in

failure to register status. The court sentenced Goguen to a term of months and

a period of supervised release with conditions.

      [¶7] In 2013, after Goguen left prison on supervised release, the United

States Probation Office moved to revoke his release on the ground that he had

accessed pornography at the Penobscot Judicial Center law library in violation

of his conditions of release. Haddow was again appointed to represent Goguen.

In open court, Goguen waived his right to an evidentiary hearing and admitted

that he had viewed pornography in violation of the conditions of his supervised

release. Goguen was sentenced, and his conviction was affirmed on appeal to

the United States Court of Appeals for the First Circuit. United States v. Goguen,

No. 13-2230 (1st Cir. Oct. 9, 2014).

      [¶8] More than three years later, in March 2018, Goguen filed his civil

complaint against Haddow in the Superior Court, alleging legal malpractice and

related claims arising from Haddow’s representation of him both at sentencing
4

for failure to register and during the proceedings to revoke his supervised

release.    Upon Haddow’s motion, the court (Mills, J.) dismissed Goguen’s

complaint for failure to state a claim. See M.R. Civ. P. 12(b)(6).

       [¶9] Because undisturbed judgments have been entered, here based on

Goguen’s in-court admissions, finding that he committed a sex offense while in

failure to register status and that he accessed pornography in violation of his

conditions of release, Goguen is collaterally estopped from asserting that

inaccurate legal advice—rather than his own conduct—caused the injuries that

he alleges.2 See Butler v. Mooers, 2001 ME 56, ¶¶ 8-9, 771 A.2d 1034; Brewer v.

Hagemann, 2001 ME 27, ¶¶ 7-10, 771 A.2d 1030.

       [¶10] As the trial court noted, in many jurisdictions, a person bringing a

professional malpractice claim against former criminal defense counsel must

plead and prove the additional element of exoneration, if not actual innocence,

of the criminal charge to seek any relief on the basis of incarceration. Brewer,

2001 ME 27, ¶ 6 & nn.3-4, 771 A.2d 1030. Most states require actual innocence,

see Wiley v. County of San Diego, 966 P.2d 983, 991 (Cal. 1998); Rodriguez v.



   2 All torts that Goguen has alleged require proximate causation. See Argereow v. Weisberg, 2018

ME 140, ¶ 27, 195 A.3d 1210 (intentional infliction of emotional distress); Steadman v. Pagels, 2015
ME 122, ¶ 26, 125 A.3d 713 (negligent infliction of emotional distress); Bell ex rel. Bell v. Dawson,
2013 ME 108, ¶¶ 17, 24, 82 A.3d 827 (negligent supervision); Butler v. Mooers, 2001 ME 56, ¶ 9, 771
A.2d 1034 (professional malpractice).
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Nielsen, 609 N.W.2d 368, 374-75 (Neb. 2000); Mahoney v. Shaheen, Cappiello,

Stein & Gordon, P.A., 727 A.2d 996, 999-1000 (N.H. 1999),3 though some states

require only exoneration, see Shaw v. State, 861 P.2d 566, 569-73 (Alaska

1993); Stevens v. Bispham, 851 P.2d 556, 561 (Or. 1993); Peeler v. Hughes &

Luce, 909 S.W.2d 494, 498 (Tex. 1995). See Brewer, 2001 ME 27, ¶ 6 & nn. 3-4,

771 A.2d 1030.

       [¶11] Goguen has not, however, alleged that any one of the pertinent

court orders—the judgment of conviction for failing to register, the sentence

imposed upon that conviction, or the order revoking his release—has been set

aside for any reason.          Because Goguen has not, through his complaint,

presented any facts necessary to overcome the Maine collateral estoppel bar,

we need not, on the record presented here, opine on whether the elements of

actual innocence or exoneration are necessary or sufficient to proceed with a

professional malpractice claim under Maine law when the alleged malpractice

involved the entry of a judgment of conviction or a subsequent revocation of

release. Further, to the extent that Goguen’s complaint may be seen to allege




  3  Cf. Hilario v. Reardon, 960 A.3d 337, 339, 343-45 (N.H. 2008) (vacating the dismissal of a
complaint alleging that counsel’s unauthorized motion to withdraw a guilty plea resulted in the
convicted offender’s breach of the plea agreement and a ruling that the offender could not seek
suspension of a portion of his sentence pursuant to the terms of that agreement).
6

malpractice affecting the sentence imposed by the federal court after Goguen

pleaded guilty to failing to register, the complaint fails to state a claim for relief

because, as is revealed by Goguen’s allegations themselves, the sentence

imposed was at the bottom of the applicable range of the federal sentencing

guidelines given the offense level that pertained to Goguen for his crime of

failure to register.

        The entry is:

                           Judgment affirmed.



Robert Goguen, appellant pro se

Benjamin J. Wahrer, Esq., and James M. Bowie, Esq., Thompson Bowie & Hatch
LLC, Portland, for appellee Jon Haddow


Cumberland County Superior Court docket number CV-2018-117
FOR CLERK REFERENCE ONLY
