MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	61	
Docket:	   Ken-16-18	
Argued:	   February	6,	2017		
Decided:	  April	4,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       DANIEL	L.	FORTUNE	
                                                	
                                               v.	
                                                	
                                        STATE	OF	MAINE	
	
	
GORMAN,	J.	

         [¶1]	 	 Daniel	 L.	 Fortune	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Kennebec	County,	Marden,	J.)	denying	his	petition	for	post-conviction	review,	

which	 was	 based,	 in	 part,	 on	 a	 claim	 of	 ineffective	 assistance	 of	 appellate	

counsel.		We	affirm	the	court’s	judgment.			

                                         I.		BACKGROUND	

         [¶2]	 	 On	 August	 28,	 2008,	 the	 State	 charged	 Daniel	 L.	 Fortune	 by	

indictment	 with	 fourteen	 criminal	 offenses,1	 including	 four	 counts	 of	

aggravated	 attempted	 murder	 (Class	 A),	 17-A	 M.R.S.	 §	152-A(1)	 (2007).2	 	 In	


     We	 explained	 the	 factual	 basis	 for	 Fortune’s	 convictions,	 at	 some	 length,	 in	 our	 opinion	
    1	

affirming	those	convictions.		State	v.	Fortune,	2011	ME	125,	¶¶	3-19,	34	A.3d	1115.	
    	
    2		Section	152-A	has	since	been	amended	but	not	in	any	way	that	affects	this	appeal.		P.L.	2007,	

ch.	476,	§	2	(effective	June	30,	2008)	(codified	at	17-A	M.R.S.	§	152-A	(2016)).	
2	

May	of	2010,	the	court	(Somerset	County,	Murphy,	J.)	held	a	jury	trial	at	which	

State	 witness	 Leo	 Hylton—Fortune’s	 alleged	 accomplice	 who	 had	 earlier	

pleaded	guilty—testified	repeatedly	that	he	could	not	recall	the	events	of	the	

night	in	question.		On	cross-examination,	Fortune	directed	Hylton’s	attention	

to	two	portions	of	a	letter	that	Hylton	had	written	to	the	victims	of	the	crime	

and	 had	 read	 aloud	 in	 court	 as	 part	 of	 his	 sentencing	 allocution	 several	

months	earlier.3		Hylton	agreed	that	he	had	made	an	allocution,	he	had	written	

the	letter,	the	handwriting	in	the	letter	was	his	own,	and	the	statements	in	the	

letter	were	true,	but	testified	that	he	could	not	recall	making	the	allocution	or	

writing	the	letter.		As	he	left	the	stand,	the	court	reminded	Hylton	that	he	was	

“not	finally	excused	from	testifying.”				

          [¶3]	 	 The	 next	 day,	 the	 State	 moved	 to	 admit	 the	 entirety	 of	 Hylton’s	

sentencing	 allocution.	 	 Over	 Fortune’s	 objection,	 the	 court	 admitted	 the	

allocution	 pursuant	 to	 M.R.	 Evid.	 106	 because	 the	 portions	 of	 the	 letter	

highlighted	by	Fortune,	if	considered	out	of	context,	might	suggest	that	Hylton	

was	taking	sole	responsibility	for	the	crimes	rather	than	apologizing	for	failing	

to	stop	Fortune	from	committing	them.		The	allocution	was	then	read	aloud	to	


     3	
    	 The	 portions	 of	 the	 letters	 highlighted	 by	 Fortune	 included	 Hylton’s	 statements	 that	 his	
“unwavering	loyalty”	and	his	“weakness,	[his]	need	to	help	those	[he]	loved,”	had	caused	“all	of	this	
senseless	pain.”		
                                                                                                          3	

the	jury	while	Hylton	was	in	another	room.		Fortune	did	not	recall	Hylton	to	

question	him	regarding	the	entire	allocution.			

        [¶4]	 	 On	 May	 14,	 2010,	 Fortune	 was	 convicted	 of	 all	 charged	 offenses.		

After	 a	 hearing,	 the	 court	 imposed	 multiple	 life	 sentences	 in	 addition	 to	

multiple	lesser	sentences,	all	to	be	served	concurrently.		Fortune	appealed	his	

convictions	 and	 sentences,	 and	 we	 affirmed	 the	 judgments.	 	 State	 v.	 Fortune,	

2011	ME	125,	¶¶	1-2,	34	A.3d	1115.		

        [¶5]		Fortune	filed	a	petition	for	post-conviction	review	in	the	Superior	

Court	 (Kennebec	 County)4	 in	 accordance	 with	 15	 M.R.S.	 §	 2129	 (2011).5	 	 He	

asserted	 several	 grounds	 for	 relief,	 including	 that	 his	 right	 to	 confront	

witnesses	 against	 him	 pursuant	 to	 the	 Confrontation	 Clause,	 U.S.	 Const.	

amend.	 VI,	 had	 been	 violated	 when	 Hylton’s	 allocution	 was	 read	 to	 the	 jury	

absent	further	cross-examination.		With	regard	to	this	claim,	Fortune	asserted	

that	 both	 trial	 counsel	 and	 appellate	 counsel	 had	 failed	 to	 provide	 effective	

assistance.	 	 Because	 appellate	 counsel	 was	 unavailable	 to	 appear	 at	 the	




   4		Fortune’s	prosecution	was	transferred	from	Kennebec	County	to	Somerset	County	for	trial	due	

to	 the	 publicity	 surrounding	 the	 case,	 but	 he	 filed	 his	 petition	 for	 post-conviction	 review	 in	
Kennebec	County.			

   5		Section	2129	has	since	been	amended	but	not	in	any	way	that	affects	this	appeal.		P.L.	2011,	

ch.	601,	§	12	(effective	August	30,	2012)	(codified	at	15	M.R.S.	§	2129	(2016)).	
4	

post-conviction	 hearing,6	 Fortune	 and	 the	 State	 stipulated	 that	 Fortune’s	

appellate	counsel	did	not	discuss,	research,	or	raise	the	Confrontation	Clause	

issue	on	appeal	because	he	had	not	wished	to	obscure	what	he	considered	to	

be	 more	 meritorious	 arguments	 by	 raising	 an	 issue	 that	 would	 be	 reviewed	

for	obvious	error.7			

          [¶6]	 	 After	 a	 testimonial	 hearing,	 in	 a	 judgment	 dated	 December	 23,	

2015,	the	court	(Marden,	J.)	denied	Fortune’s	petition.		As	noted,	Fortune	had	

claimed	 that	 both	 trial	 counsel	 and	 appellate	 counsel	 were	 ineffective.	 	 The	

court	held	that	Fortune	had	failed	to	prove	that	trial	counsel	was	ineffective,	

and	 Fortune	 has	 not	 challenged	 that	 determination.8	 	 Regarding	 Fortune’s	

contention	 that	 he	 received	 ineffective	 assistance	 of	 appellate	 counsel,	

however,	 the	 court’s	 judgment	 is	 confusing	 and	 internally	 inconsistent.	 	 The	

court	 found	 that	 Fortune’s	 appellate	 counsel	 was	 “deficient	 in	 failing	 to	



     6		Fortune’s	trial	counsel	was	able	to	appear	and	did	testify	at	the	post-conviction	hearing.			


     7	 	 Because	 Fortune’s	 trial	 counsel	 had	 not	 objected	 to	 the	 admission	 of	 Hylton’s	 allocution	 on	

Confrontation	 Clause	 grounds,	 the	 issue	 would	 have	 been	 reviewed	 for	 obvious	 error	 on	 appeal.		
See	State	v.	Merchant,	2003	ME	44,	¶	15,	819	A.2d	1005	(stating	that	we	review	issues	raised	for	the	
first	time	on	appeal	for	obvious	error).		

     8	 	 Without	 argument,	 Fortune	 states	 in	 his	 brief	 on	 appeal	 that	 he	 disagrees	 with	 the	 court’s	

determination	 that	 he	 did	 not	 prove	 ineffectiveness	 of	 trial	 counsel,	 and	 he	 has	 purportedly	
reserved	 his	 right	 to	 challenge	 that	 determination	 on	 appeal	 in	 the	 future,	 asserting	 that	 the	
judgment	at	issue	here	is	not	yet	final.		Because	we	reject	the	challenge	that	Fortune	has	presented	
here,	 the	 judgment	 denying	 his	 post-conviction	 petition	 will	 be	 final,	 thereby	 precluding	 further	
appellate	proceedings	in	this	action.	
                                                                                              5	

present	[the	Confrontation	Clause	issue]”	because	that	issue	was	“as	strong	if	

not	stronger”	than	some	of	the	issues	that	were	raised	on	appeal.		In	addition,	

the	court	seemed	to	grant	Fortune’s	petition	with	regard	to	the	Confrontation	

Clause	issue;	it	stated	that	Fortune	“is	entitled	to	an	appeal	on	that	very	issue.”		

Despite	this	language,	however,	the	court	did	not	make	an	express	finding	as	

to	whether	appellate	counsel’s	failure	to	raise	the	Confrontation	Clause	issue	

prejudiced	Fortune’s	direct	appeal,	and	it	ultimately	denied	Fortune’s	petition.		

       [¶7]	 	 In	 a	 motion	 for	 reconsideration,	 Fortune	 pointed	 out	 the	

inconsistency	 to	 the	 court,	 proposing	 that	 the	 court	 had	 in	 fact	 intended	 to	

grant	 his	 petition	 regarding	 the	 claim	 of	 ineffective	 assistance	 of	 appellate	

counsel.	 	 Declining	 to	 modify	 its	 judgment,	 the	 court	 responded	 by	 stating	

that,	 in	 its	 original	 order,	 it	 had	 determined	 that	 appellate	 counsel’s	

performance	 “was	 not	 manifestly	 unreasonable,”9	 and	 had	 “therefore	 denied	

the	 petition	 with	 regard	 to	 appellate	 counsel.”	 	 Despite	 that	 language,	 and	

despite	 once	 again	 denying	 Fortune’s	 petition,	 however,	 the	 court	 repeated	

the	 language	 it	 used	 in	 its	 original	 order,	 i.e.,	 that	 Fortune	 “is	 entitled	 to	 an	

appeal	on	that	very	issue.”		




  9		The	court’s	judgment	contains	no	such	language.	
6	

           [¶8]	 	 Fortune	 appealed	 the	 post-conviction	 judgment,	 and	 we	 granted	

Fortune	 a	 certificate	 of	 probable	 cause	 to	 pursue	 this	 appeal.	 	 See	 M.R.	

App.	P.	19.		

                                             II.		DISCUSSION	

           [¶9]		As	we	have	noted,	Strickland	v.	Washington,	466	U.S.	668	(1984),	

“establishes	 the	 standards	 controlling	 the	 disposition	 of	 claims	 of	 ineffective	

assistance	 of	 counsel”	 in	 the	 form	 of	 a	 two-part	 analysis:	 (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.”		Theriault	v.	State,	2015	ME	137,	¶¶	13-14,	125	A.3d	1163	(citation	

omitted)	(quotation	marks	omitted).		In	Strickland,	the	United	States	Supreme	

Court	 characterized	 the	 inquiries	 into	 ineffective	 assistance	 of	 counsel	 as	

mixed	 questions	 of	 law	 and	 fact.	 	 466	U.S.	 at	 698.	 	 Federal	 appellate	 courts	

have	 therefore	 reviewed	 ineffective	 assistance	 of	 counsel	 claims	 as	 such.10		


     10	
       	 Many	 of	 the	 states’	 highest	 courts	 also	 recognize	 that	 claims	 of	 ineffective	 assistance	 of	
counsel	 present	 mixed	 questions	 of	 law	 and	 fact	 on	 appeal.	 	 See,	 e.g.,	 Dunlap	 v.	 People,	 173	 P.3d	
1054,	1063	(Colo.	2007);	Taylor	v.	Comm’r	of	Corr.,	324	Conn.	631,	643-44,	---	A.3d	---	(Conn.	2017);	
Washington	v.	United	States,	689	A.2d	568,	571	(D.C.	1997);	State	v.	Pearce,	994	So.	2d	1094,	1099	
(Fla.	 2008);	 Muller	 v.	 State,	 663	 S.E.2d	 206,	 208	 (Ga.	 2008);	 Coleman	 v.	 State,	 741	 N.E.2d	 697,	
699-700	(Ind.	2000);	Brown	v.	Commonwealth,	253	S.W.3d	490,	500	(Ky.	2008);		Coleman	v.	State,	
75	A.3d	916,	923	(Md.	2013);	People	v.	Douglas,	852	N.W.2d	587,	592	(Mich.	2014);	Griffin	v.	State,	
883	 N.W.2d	 282,	 287	 (Minn.	 2016);	 State	 v.	 Turner,	 12	 P.3d	 934,	 943	 (Mont.	 2000);	 State	 v.	
Alarcon-Chavez,	 295	 Neb.	 1014,	 1021,	 ---	 N.W.2d	 ---	 (Neb.	 2017);	 Rubio	 v.	 State,	 194	 P.3d	 1224,	
1229	(Nev.	2008);	State	v.	Cable,	136	A.3d	919,	927	(N.H.	2016);	State	v.	Favela,	343	P.3d	178,	182	
(N.M.	2015);	Bird	v.	State,	882	N.W.2d	727,	729	(N.D.	2016);	Commonwealth	v.	Bardo,	105	A.3d	678,	
685	 (Pa.	 2014);	 Calvert	 v.	 State,	 342	 S.W.3d	 477,	 485	 (Tenn.	 2011);	 State	 v.	 Hutchings,	 285	 P.3d	
                                                                                                   7	

See,	e.g.,	Smith	v.	Dickhaut,	836	F.3d	97,	103	(1st	Cir.	2016)	(“In	the	context	of	

a	 federal	 habeas	 proceeding,	 claims	 of	 ineffective	 assistance	 of	 counsel	

present	mixed	questions	of	law	and	fact	.	.	.	.”);	Taylor	v.	Kelley,	825	F.3d	466,	

469	(8th	Cir.	2016);	United	States	v.	Ragin,	820	F.3d	609,	617	(4th	Cir.	2016);	

Denson	v.	United	States,	804	F.3d	1339,	1341	(11th	Cir.	2015);	United	States	v.	

Kilpatrick,	798	F.3d	365,	374	(6th	Cir.	2015);	United	States	v.	Thomas,	724	F.3d	

632,	647	(5th	Cir.	2013);	Carrera	v.	Ayers,	670	F.3d	938,	942	(9th	Cir.	2011);	

United	 States	 v.	 Rushin,	 642	 F.3d	 1299,	 1302	 (10th	 Cir.	 2011);	 Morales	 v.	

United	 States,	 635	 F.3d	 39,	 43	 (2d	 Cir.	 2011);	 United	 States	 v.	 Goodwin,	

594	F.3d	 1,	 4	 (D.C.	 Cir.	 2010);	 United	 States	 v.	 Fudge,	 325	F.3d	 910,	 923	

(7th	Cir.	2003);	United	States	v.	Cross,	308	F.3d	308,	314	(3d	Cir.	2002).			

       [¶10]	 	 In	 contrast,	 we	 have	 historically	 reviewed	 a	 court’s	

determinations	 as	 to	 ineffective	 assistance	 of	 counsel—both	 pre-	 and	

post-Strickland—solely	 for	 clear	 error.	 	 McGowan	 v.	 State,	 2006	ME	16,	 ¶	 15,	

894	A.2d	493;	 see,	 e.g.,	 Chase	 v.	 State,	 227	 A.2d	 455,	 455,	 462	 (Me.	 1967)	

(reviewing	 the	 denial	 of	 a	 pre-Strickland	 claim	 of	 ineffective	 assistance	 of	

counsel	 for	 clear	 error).	 	 In	 2006,	 in	 accordance	 with	 principles	 of	 judicial	



1183,	1186	(Utah	2012);	Fuentes	v.	Clarke,	777	S.E.2d	550,	553	(Va.	2015);		State	v.	Jones,	352	P.3d	
776,	781	(Wash.	2015);	State	v.	Thiel,	665	N.W.2d	305,	314	(Wis.	2003);	Worley	v.	State,	386	P.3d	
765,	769	(Wyo.	2017).	
8	

economy,	 we	 twice	 declined	 to	 reach	 the	 question	 of	 whether	 to	 adopt	 a	

bifurcated	standard	of	review—clear	error	for	findings	of	fact	and	de	novo	for	

conclusions	 of	 law—in	 appeals	 governed	 by	 Strickland.	 	 See	 Pineo	 v.	 State,	

2006	 ME	 119,	 ¶	 11,	 908	A.2d	 632;	 McGowan,	 2006	ME	16,	 ¶¶	 14-16,	

894	A.2d	493.	 	 For	 many	 years	 thereafter,	 without	 discussion,	 we	 employed	

the	 clear	 error	 standard	 for	 appeals	 of	 post-conviction	 judgments	 where	 the	

petitioner	claimed	ineffective	assistance	of	counsel.		See,	e.g.,	Roberts	v.	State,	

2014	ME	125,	 ¶	 23,	 103	 A.3d	 1031;	 Lamarre	 v.	 State,	 2013	 ME	 110,	 ¶	 14,	

82	A.3d	 845;	 Francis	 v.	 State,	 2007	 ME	 148,	 ¶	 5	 &	 n.2,	 938	A.2d	 10;	 Heon	 v.	

State,	2007	ME	131,	¶	8,	931	A.2d	1068;	Alexandre	v.	State,	2007	ME	106,	¶	43,	

927	A.2d	1155.	

      [¶11]		More	recently,	however,	but	without	announcing	any	changes	in	

our	 process,	 we	 articulated	 a	 different	 standard	 of	 review	 for	 appeals	 of	

post-conviction	 judgments.	 	 See,	e.g.,	 Middleton	 v.	 State,	 2015	ME	164,	 ¶¶	 11,	

28,	 129	 A.3d	 962	 (“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.”	(quotation	marks	omitted));	Theriault,	

2015	ME	137,	 ¶	 12,	 125	A.3d	1163;	 Manley	 v.	 State,	 2015	 ME	 117,	 ¶	11,	

123	A.3d	219.	
                                                                                          9	

	      [¶12]	 	 Again,	 we	 recognize	 that	 “Strickland	 is	 the	 seminal	 case	 that	

establishes	 the	 standards	 controlling	 the	 disposition	 of	 claims	 of	 ineffective	

assistance	 of	 counsel,”	 and	 “[its]	 standards	 govern	 ineffectiveness	 claims	 in	

state	 court	 post-conviction	 proceedings.”	 	 Theriault,	 2015	 ME	 137,	 ¶	13,	

125	A.3d	1163	(quotation	marks	omitted).		Today,	in	our	continuing	effort	to	

be	faithful	to	the	Strickland	standards,	and	acknowledging	that	both	prongs	of	

the	 Strickland	 analysis	 often	 present	 mixed	 questions	 of	 law	 and	 fact,	 see	

Strickland,	466	U.S.	at	468,	we	announce	that	we	will	review	a	post-conviction	

court’s	 legal	 conclusions	 de	 novo	 and	 its	 factual	 findings	 for	 clear	 error,	 see	

McGowan,	2006	ME	16,	¶	14,	894	A.2d	493	(“Mixed	questions	of	law	and	fact	

are	 generally	 subject	 to	 bifurcated	 appellate	 review	 with	 the	 post-conviction	

court’s	 factual	 findings	 reviewed	 for	 clear	 error	 and	 its	 legal	 conclusions	

reviewed	de	novo.”).	

       [¶13]		We	recognize	that	such	a	“mix”	of	legal	and	factual	questions	can	

be	 difficult	 to	 tease	 apart.	 	 As	 some	 federal	 courts	 of	 appeals	 have	 done,	 we	

will	 apply	 the	 most	 appropriate	 standard	 of	 review	 for	 the	 issue	 raised	

depending	on	the	extent	to	which	that	issue	is	dominated	by	fact	or	by	law.		As	

the	First	Circuit	Court	of	Appeals	has	explained:	

       Where	 the	 district	 court	 held	 an	 evidentiary	 hearing	 on	 an	
       ineffective	 assistance	 of	 counsel	 claim,	 [an	 appellate	 court]	
10	

      review[s]	 its	 factual	 conclusions	 for	 clear	 error	 and	 its	 legal	
      conclusions	 de	 novo.	 	 Both	 the	 performance	 and	 prejudice	
      components	of	the	ineffectiveness	inquiry	are	mixed	questions	of	
      fact	and	law,	and	the	standard	of	review	applied	to	such	questions	
      depends,	 in	 the	 last	 analysis,	 on	 the	 extent	 to	 which	 a	 particular	
      question	is	fact-dominated	or	law-dominated.	
      	
United	States	v.	Manon,	608	F.3d	126,	132	(1st	Cir.	2010)	(alterations	omitted)	

(citations	 omitted)	 (quotation	 marks	 omitted);	 see	 Rossetti	 v.	 United	 States,	

773	F.3d	322,	 327	 (1st	 Cir.	 2014)	 (explaining	 that	 the	 district	 court’s	

conclusion	 as	 to	 the	 prejudice	 prong	 of	 Strickland	 “present[ed]	 ‘mixed	

questions	 of	 law	 and	 fact’	 in	 which	 factual	 questions	 predominate[d]”	 and	

therefore	 the	 appellate	 court	 reviewed	 “largely	 for	 clear	 error”);	 Turner	 v.	

United	 States,	 699	F.3d	578,	 584	 (1st	 Cir.	 2012)	 (explaining	 that,	 where	 the	

district	court	“engaged	in	a	careful	and	close	analysis	of	the	trial	evidence,”	the	

appellate	 court	 reviewed	 the	 “fact-dominated”	 prejudice	 prong	 of	 Strickland	

for	clear	error).			

       [¶14]	 	 This	 same	 “mixed”	 standard	 of	 review	 has	 been	 embraced	 by	

other	states,	and	for	the	same	reasons:		

       The	issue	of	whether	the	representation	that	a	defendant	received	
       at	trial	was	constitutionally	inadequate	is	a	mixed	question	of	law	
       and	fact.		As	such,	the	question	requires	plenary	review	unfettered	
       by	the	clearly	erroneous	standard.		In	our	review	of	this	claim,	we	
       afford	 great	 deference	 to	 the	 habeas	 court’s	 factual	 findings,	
       which	underlie	its	legal	conclusions.		The	habeas	court	is	afforded	
       broad	discretion	in	making	its	factual	findings,	and	those	findings	
                                                                                               11	

       will	not	be	disturbed	unless	they	are	clearly	erroneous.		Thus,	this	
       court	 does	 not	 retry	 the	 case	 or	 evaluate	 the	 credibility	 of	 the	
       witnesses.		Rather,	we	must	defer	to	the	trier	of	fact’s	assessment	
       of	 the	 credibility	 of	 the	 witnesses	 based	 on	 its	 firsthand	
       observation	of	their	conduct,	demeanor	and	attitude.		The	habeas	
       judge,	 as	 the	 trier	 of	 facts,	 is	 the	 sole	 arbiter	 of	 the	 credibility	 of	
       witnesses	and	the	weight	to	be	given	to	their	testimony.	
	
Taylor	 v.	 Comm’r	 of	 Corr.,	 324	 Conn.	 631,	 643-44,	 ---	 A.3d	 ---	 (2017)	

(alterations	 omitted)	 (citations	 omitted)	 (quotation	 marks	 omitted);	 see	 also	

Coleman	v.	State,	75	A.3d	916,	925	(Md.	2013)	(“[I]n	making	our	independent	

appraisal,	 we	 accept	 the	 findings	 of	 the	 trial	 judge	 as	 to	 what	 are	 the	

underlying	 facts	 unless	 he	 is	 clearly	 in	 error.	 	 We	 then	 reweigh	 the	 facts	 as	

accepted	 in	 order	 to	 determine	 the	 ultimate	 mixed	 question	 of	 law	 and	 fact,	

namely,	was	there	a	violation	of	a	constitutional	right	as	claimed.”	(quotation	

marks	omitted));	Fuentes	v.	Clarke,	777	S.E.2d	550,	553	(Va.	2015)	(explaining	

that	 the	 trial	 court’s	 ruling	 that	 counsel	 adequately	 advised	 the	 defendant	 of	

the	consequences	of	a	guilty	plea	“is	a	legal	conclusion	that	is	not	entitled	to	

deference	 upon	 appellate	 review.	 	 However,	 the	 [trial]	 court	 stated	 that	 it	

based	 its	 ruling	 on	 the	 evidence	 adduced	 at	 the	 evidentiary	 hearing,	 so	 we	

review	 that	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 prevailing	 party	

below	.	.	.	.”).	
12	

       [¶15]	 	 Applying	 the	 clarified	 standard	 of	 review	 to	 this	 case,	 however,	

provides	no	relief	for	Fortune.		In	its	judgment	denying	Fortune’s	petition	for	

post-conviction	review,	the	court	stated	that	Fortune’s	appellate	counsel	was	

“deficient	in	failing	to	[raise	on	direct	appeal]”	trial	counsel’s	failure	to	object	

to	the	admission	of	Hylton’s	allocution	on	Confrontation	Clause	grounds.		Even	

giving	great	deference	to	this	mixed	determination	of	fact	and	law,	see	Manley,	

2015	ME	117,	¶	11,	123	A.3d	219,	we	must	conclude	that	Fortune’s	appellate	

counsel	was	not	ineffective	within	the	meaning	of	the	Sixth	Amendment.		See	

U.S.	Const.	amend.	VI.	

       [¶16]	 	 An	 appellate	 attorney’s	 mission	 is	 to	 identify	 errors	 in	 the	 trial.		

Therefore,	 a	 claim	 that	 appellate	 counsel	 was	 ineffective	 is,	 in	 actuality,	 an	

assertion	 that	 there	 was	 an	 “alleged	 flaw	 in	 the	 trial	 proceedings	 for	 which	

appellate	 counsel	 neglected	 to	 seek	 relief.”	 	Hollon	 v.	 Commonwealth,	

334	S.W.3d	 431,	 439	 (Ky.	 2010).	 	 Here,	 the	 court	 correctly	 determined	 that	

trial	 counsel	 handled	 the	 Confrontation	 Clause	 issue	 well	 and	 created	 no	

prejudice	 for	 Fortune.11	 	 Therefore,	 the	 court’s	 determination	 that	 appellate	




   11		Fortune’s	argument	concerning	trial	counsel’s	handling	of	the	Confrontation	Clause	issue	was	

undercut	 by	 Hylton’s	 continuing	 availability	 for	 cross-examination.	 	 See	 State	 v.	 Gorman,	
2004	ME	90,	¶¶	51-55,	854	A.2d	1164.	
                                                                                                                 13	

counsel’s	decision	not	to	raise	the	same	issue	on	appeal	was	“deficient”	is	not	

supported	by	the	record.		As	the	United	States	Supreme	Court	has	stated,		

      the	proper	standard	for	evaluating	[a]	claim	that	appellate	counsel	
      was	 ineffective	 in	 neglecting	 to	 file	 a	 merits	 brief	 is	 that	
      enunciated	in	Strickland	v.	Washington,	466	U.S.	668,	80	L.	Ed.	2d	
      674,	104	S.	Ct.	2052	(1984).		Respondent	must	first	show	that	his	
      counsel	 was	 objectively	 unreasonable	 in	 failing	 to	 find	 arguable	
      issues	 to	 appeal—that	 is,	 that	 counsel	 unreasonably	 failed	 to	
      discover	 nonfrivolous	 issues	 and	 to	 file	 a	 merits	 brief	 raising	
      them.	
      	
Smith	v.	Robbins,	528	U.S.	259,	285	(2000)	(citations	omitted).		Here,	the	court	

correctly	 determined	 that	 trial	 counsel	 had	 not	 erred	 in	 her	 handling	 of	

Hylton’s	allocution.		Therefore,	appellate	counsel’s	“failure”	to	raise	that	issue	

could	 never	 provide	 a	 basis	 for	 ineffectiveness,	 and	 the	 court’s	 apparent	

determination	to	the	contrary	was	error.12			

         [¶17]		The	court	apparently	denied	Fortune’s	petition	because	it	did	not	

find	 or	 conclude	 that	 any	 error	 by	 appellate	 counsel	 was	 sufficiently	

prejudicial	 to	 justify	 any	 relief.13	 	 Having	 determined	 that	 appellate	 counsel	




   12	  	 Because	 appellate	 counsel’s	 performance	 did	 not	 fall	 “below	 an	 objective	 standard	 of	
reasonableness,”	 Strickland	 v.	 Washington,	 466	 U.S.	 668,	 688	 (1984),	 there	 was	 no	 need	 for	 the	
court	to	address	the	issue	of	prejudice.		
          	
   13	 	 Again,	 in	 both	 its	 original	 order	 and	 the	 order	 on	 the	 motion	 for	 reconsideration,	 the	 court	

denied	Fortune’s	petition.		In	the	order	on	reconsideration,	the	court	also	stated	that	it	determined	
that	 appellate	 counsel’s	 decision	 not	 to	 raise	 the	 Confrontation	 Clause	 on	 appeal	 was	 not	
“manifestly	unreasonable.”			
14	

committed	no	error	in	declining	to	pursue	the	Confrontation	Clause	issue	on	

appeal,	we	affirm	the	trial	court’s	denial	of	Fortune’s	petition.		

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	     	      	     	     	
	
	
	
Rory	 A.	 McNamara,	 Esq.	 (orally),	 Drake	 Law,	 LLC,	 Berwick,	 for	 appellant	
Daniel	L.	Fortune	
	
Maeghan	 Maloney,	 District	 Attorney	 (orally),	 Kennebec	 County	 District	
Attorney’s	 Office,	 Prosecutorial	 District	 IV,	 Augusta,	 for	 appellee	 State	 of	
Maine	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2014-56	
FOR	CLERK	REFERENCE	ONLY	
	
	
