MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2019 ME 72
Docket:   Aro-18-257
Argued:   December 12, 2018
Decided:  May 21, 2019

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




                             JONATHAN A. PETGRAVE

                                           v.

                                  STATE OF MAINE


MEAD, J.

      [¶1] For the third time in recent years we are called upon to establish a

procedure for bringing a claim of ineffective assistance of counsel in a specific

context where a party has the right to the effective assistance of counsel and

where no statutory procedure to enforce that right existed previously—here in

the context of a claim arising from a probation revocation judgment. See

In re Henry B., 2017 ME 72, 159 A.3d 824 (claim of ineffective assistance of

counsel arising from an involuntary commitment proceeding); In re M.P.,

2015 ME 138, 126 A.3d 718 (claim of ineffective assistance of counsel arising

from a termination of parental rights proceeding). We do so being mindful of

two primary considerations: (1) the Legislature has provided by statute that
2

review of a revocation of a defendant’s probation “must be by appeal to the

Law Court,” 17-A M.R.S. § 1207(1) (2018); and (2) for that appeal to be

meaningful, we must have a sufficiently well-developed record to review.

                               I. BACKGROUND

      [¶2] In August 2016, after Jonathan Petgrave pleaded guilty to a charge

of unlawful possession of a scheduled drug (Class B), 17-A M.R.S.

§ 1107-A(1)(A)(2) (2018), the trial court (Aroostook County, Hunter, J.)

entered a judgment and commitment imposing a sentence of three years’

imprisonment with all but 120 days suspended, two years of probation, a

$500 fine, and payment of $120 in restitution.

      [¶3] One year later, the State moved to revoke Petgrave’s probation,

alleging that he had committed a serious domestic violence assault. While that

motion was pending, the State filed a second motion to revoke, alleging that

Petgrave was unlawfully in possession of a firearm. Petgrave entered denials

to both motions and counsel was appointed to represent him. The court

(Stewart, J.) then changed venue to Penobscot County on Petgrave’s motion. On

December 19, 2017, following an evidentiary hearing on the first motion to

revoke, the court (Campbell, J.) found that Petgrave had violated his probation.

At a dispositional hearing the court fully revoked Petgrave’s probation and
                                                                                3

ordered that he serve the two years, eight months remaining on his underlying

sentence. It declared the second motion to revoke moot.

      [¶4]   Petgrave requested a certificate of probable cause to appeal

pursuant to M.R. App. P. 19, asserting that there was insufficient evidence to

establish either that he was on probation at the time of the alleged assault or

that the assault occurred. We denied the request.

      [¶5] While that request was pending, Petgrave, with new counsel, filed a

petition for post-conviction review in the trial court alleging that his counsel

had been ineffective at the revocation hearing in failing to call unspecified

witnesses and in “fail[ing] to present a proper defense.” The court (Anderson, J.)

summarily dismissed the petition, determining that pursuant to 15 M.R.S.

§ 2121(2) (2018), “post-sentencing proceedings which are proper to challenge

on post-conviction review do not include revocation of probation hearings.”

(Alterations and quotation marks omitted); see M.R.U. Crim. P. 70(b). The court

concluded that Petgrave’s remedy for any claim of error arising from the

revocation hearing was to seek a discretionary appeal pursuant to 17-A M.R.S.

§ 1207(1), as he had already done. Petgrave appealed from the summary

dismissal of his petition and we granted a certificate of probable cause.

M.R. App. P. 19(a)(2)(F).
4

                                      II. DISCUSSION

A.       Petgrave’s Right to Effective Assistance of Counsel

         [¶6]   Petgrave asserts that beyond the bare right to have counsel

represent him at the hearing, he had a due process right to the effective

assistance of counsel. The State agrees, as do we. The Legislature grants a

person accused of violating probation the right to counsel, including the right

to court-appointed counsel if the person is indigent, 17-A M.R.S. § 1205-C(4)

(2018),1 and we recently held in another context involving the potential

deprivation of liberty that “where a state statute affords an individual . . . the

right to counsel, the legislature could not have intended that counsel could be

prejudicially ineffective.” In re Henry B., 2017 ME 72, ¶ 6, 159 A.3d 824

(quotation marks omitted). Applying the same rationale here, we conclude that

Petgrave had the right to have counsel assist him effectively before his

probation was revoked and he was subjected to further incarceration.

B.       The Strickland Test

         [¶7] Petgrave next urges that the question of whether he received

effective assistance at the revocation hearing should be answered by applying

the two-part test first articulated by the United States Supreme Court in


    The statute was amended after the State moved to revoke Petgrave’s probation, but not in any
     1

way that affects this appeal. P.L. 2017, ch. 214, § 1 (effective Nov. 1, 2017).
                                                                                                 5

Strickland v. Washington, 466 U.S. 668, 687 (1984), which applies to claims of

ineffective assistance of counsel at criminal trials, see, e.g., Fahnley v. State,

2018 ME 92, ¶ 17, 188 A.3d 871.2 Again, the State agrees.

         [¶8] We also agree that Strickland is the proper test for evaluating

whether counsel was effective in this context. It is the test used to evaluate such

claims arising from criminal trials, Fahnley, 2018 ME 92, ¶ 17, 188 A.3d 871;

involuntary commitment proceedings, In re Henry B., 2017 ME 72, ¶ 9,

159 A.3d 824; and proceedings to terminate parental rights, In re M.P.,

2015 ME 138, ¶ 26, 126 A.3d 718; and, as we have noted, “[t]he Strickland

standard is known to the bar and the bench, and Strickland carries with it a

developing body of case law, which will aid courts in the efficient and timely

resolution of such claims.” In re M.P., 2015 ME 138, ¶ 26, 126 A.3d 718; see also

In re Henry B., 2017 ME 72, ¶ 8, 159 A.3d 824 (“Strickland is a well-known and

developing standard”).

C.       Statutory Construction

         [¶9] The post-conviction review process, 15 M.R.S. §§ 2121-2132 (2018),

is, as the trial court concluded, unavailable in the case of a probation revocation.



     The test requires the claimant to prove that “counsel’s representation fell below an objective
     2

standard of reasonableness and . . . [that] errors of counsel actually had an adverse effect on the
defense.” Fahnley v. State, 2018 ME 92, ¶ 17, 188 A.3d 871 (quotation marks omitted).
6

By statute, post-conviction review is available to review “post-sentencing

proceedings occurring during the course of sentences.” 15 M.R.S. § 2122.

A probation revocation hearing would ordinarily qualify. The Legislature,

however, has unambiguously said that “revocation of probation” is not a

“post-sentencing proceeding.”      15 M.R.S. § 2121(2).        Accordingly, the

post-conviction review process—which is, “except for direct appeals from a

criminal judgment, [the] exclusive method of review . . . of post-sentencing

proceedings,” 15 M.R.S. § 2122—is not an available mechanism for the

defendant to seek a remedy in this case. For that reason, the trial court,

correctly applying the statutory and case law existing at the time, dismissed

Petgrave’s petition.

      [¶10]   The unavoidable conclusion that the post-conviction review

process found in Title 15 is not available to Petgrave is reinforced in the

Criminal Code, where the Legislature has declared that “[r]eview of a

revocation of probation . . . must be by [discretionary] appeal to the Law Court.”

17-A M.R.S. § 1207(1) (emphasis added); see M.R. App. P. 19(a)(2)(B). Having

a discretionary appeal as the only available avenue for appellate review creates

an insurmountable obstacle for Petgrave, however, because for more than

twenty years we have maintained a bright-line rule that in a criminal context
                                                                                7

we will not consider claims of ineffective assistance on direct appeal, but rather

will only consider such claims following a post-conviction review hearing.

State v. Nichols, 1997 ME 178, ¶¶ 4-5, 698 A.2d 521; see State v. Troy,

2014 ME 65, ¶ 3, 91 A.3d 1064 (same). As a result of the prohibition in section

1207(1) and our holding in Nichols, it would initially appear that Petgrave is

deprived of an opportunity to obtain meaningful review, including an

opportunity for an evidentiary hearing, on his claim of ineffective assistance of

counsel in his probation revocation matter. We must therefore look elsewhere

to identify the avenue for such a claim to be pursued.

D.    Habeas Corpus

      [¶11]   “The statutory remedy of post-conviction review, 15 M.R.S.

§§ 2121-2132, was intended to fully replace and implement the constitutional

right of post-conviction habeas corpus as it pertains to a post-sentencing

proceeding that occurs during the course of an offender’s sentence.” James v.

State, 2008 ME 122, ¶ 12, 953 A.2d 1152. Section 2122 specifically states that

post-conviction review “replaces the remedies available pursuant to

post-conviction habeas corpus, to the extent that review of a criminal

conviction or proceedings were reviewable, [and] the remedies available
8

pursuant to common law habeas corpus, including habeas corpus as recognized

in Title 14, sections 5501 and 5509 to 5546.” 15 M.R.S. § 2122.

      [¶12]     Section 2122 further states that the post-conviction review

chapter is “construed to provide relief for those persons required to use this

chapter as required by the Constitution of Maine, Article I, Section 10.” Id.

Article I, section 10 of the Maine Constitution states, in pertinent part, that “the

privilege of the writ of habeas corpus shall not be suspended, unless when in

cases of rebellion or invasion the public safety may require it.” (Emphasis

added). Thus, where the writ of habeas corpus was available pursuant to

article I, section 10 to protect fundamental rights—including the right to

effective assistance of counsel—the rule of construction stated in section 2122

confirms that habeas corpus relief remains available for Petgrave because he is

not a person who is “required to use this chapter,” 15 M.R.S. § 2122, to address

his claims of ineffective assistance of counsel in the context of a probation

revocation matter. We now discuss the specific procedure to be used in order

to afford relief in this case.

E.    Procedure for Raising an Ineffective Assistance Claim

      [¶13] Because Petgrave’s claim is barred from both avenues in which we

would ordinarily consider assertions of error occurring in a criminal
                                                                                                  9

proceeding—i.e., from post-conviction review by statute and from direct appeal

by the Nichols rule—we today recognize an exception to the broad rule

articulated in Nichols and hold that in the specific context of a discretionary

appeal taken from a probation revocation judgment, a defendant may assert a

claim of ineffective assistance of counsel using the procedure described below.3

The procedure we announce satisfies two important objectives, in that it

affords a defendant fundamental fairness by allowing an ineffective assistance

claim in the context of a probation revocation proceeding to be heard, see State

v. Hunt, 2016 ME 172, ¶ 19, 151 A.3d 911 (“[t]he Due Process Clause prohibits

deprivations of . . . liberty . . . without fundamental fairness” (alteration and

quotation marks omitted)), and it provides us with a fully-developed

evidentiary record, similar to that resulting from a post-conviction review

hearing, on which to consider such a claim.

       [¶14] Rule 33 of the Maine Rules of Unified Criminal Procedure provides

that a trial court “on motion of the defendant may grant a new trial to the

defendant if required in the interest of justice.” We acknowledge that the rule



   3 Because we expressly modify the holding of State v. Nichols, 1997 ME 178, ¶¶ 4-5, 698 A.2d 521,
and confirm that we will now entertain a discretionary appeal taken directly from a probation
revocation judgment asserting a claim of ineffective assistance of counsel, Petgrave need not invoke
the statutory habeas corpus process, 14 M.R.S. §§ 5501-5546 (2018), to pursue his claim. We note
also that the statute does not provide a specific process for addressing such claims. See infra
¶¶ 16-18.
10

is generally intended to be a vehicle to remedy injustices arising from the trial

itself and is not explicitly directed at post-sentencing proceedings. That said,

we conclude that in this circumstance of an individual whose probation has

been revoked, the principles underlying Rule 33 justify the establishment of a

process that affords a meaningful opportunity to pursue a claim of ineffective

assistance of counsel. See State v. Spearin, 467 A.2d 173, 174 (Me. 1983)

(remanding for further consideration following an appeal taken from the denial

of a motion for a new trial “out of concern for basic fairness to defendant and

for full development of [an] adequate record[] for appellate review”).

      [¶15] Accordingly, a defendant who seeks to raise a claim of ineffective

assistance of counsel after a probation revocation hearing may do so by filing a

Rule 33 motion for a new trial, which, after it is filed, will be directed to the

judge who issued the judgment revoking probation. The motion must be filed

within thirty-five days after the entry of the judgment, or within seventy days

after the entry of the judgment if the motion is based on the ground of

newly-discovered evidence. Those time limitations balance the defendant’s

need for an adequate opportunity to review the record of the hearing, possibly

with new counsel, against “legitimate state interests in promoting timely

resolution of criminal charges [and] protecting the finality of judgments” in a
                                                                                                11

post-conviction matter. Loi Van Ngo v. State, 2008 ME 71, ¶ 15, 946 A.2d 424.

The motion for a new hearing must include at least one affidavit “stating, with

specificity, the basis for the claim” of ineffective assistance of counsel. In re M.P.,

2015 ME 138, ¶ 21, 126 A.3d 718. If the defendant fails to include such an

affidavit, “the . . . motion asserting the ineffective assistance of counsel must be

denied.” Id.

       [¶16] When a motion is timely filed with the required affidavit(s), the

judge who issued the revocation judgment will review the allegations and

determine, applying the Strickland test, whether the defendant has made out a

prima facie claim of ineffective assistance.                If so, the court will hold an

evidentiary hearing; if not, it will dismiss the motion. Following an evidentiary

hearing the court shall, again applying the Strickland test, either (1) grant the

motion, vacate the original judgment, and order a new hearing on the State’s

motion to revoke probation; or (2) deny the defendant’s motion. If the court

declines to hold an evidentiary hearing, or denies the defendant’s motion

following an evidentiary hearing, the defendant may apply to take a

discretionary appeal pursuant to M.R. App. P. 19(a)(2)(B).4


   4 A Rule 33 motion filed in the trial court requesting a new probation revocation hearing on the

ground of ineffective assistance of counsel does not encompass or affect any other ground of appeal
arising from a judgment revoking probation; any such ground must be pursued by discretionary
appeal in the usual course, notwithstanding M.R. App. P. 2B(b)(2)(C). See M.R. App. P. 2B(b)(1),
12

       [¶17] In this case, although we conclude that the trial court did not err

in summarily dismissing Petgrave’s petition for post-conviction review,

Petgrave will have thirty-five days following the entry of our mandate to file a

motion for a new probation revocation hearing in accordance with the process

established above should he seek to do so given the strictures of the filing

requirements.

       The entry is:
                   Judgment summarily dismissing petition for
                   post-conviction review affirmed. Petgrave may
                   file a motion for a new probation revocation
                   hearing in the trial court within thirty-five days
                   of the issuance of our mandate.




19(a)(2)(B). Petgrave attempted to do so here in challenging the sufficiency of the evidence via a
timely application to allow a discretionary appeal while petitioning for post-conviction review on the
ground of ineffective assistance.
    In the event that a Rule 33 motion is filed in the trial court concurrently with or following an
application to allow a discretionary appeal, the provisions of the Rule apply: “the clerk of the Unified
Criminal Docket shall immediately send notice to the clerk of the Law Court of the filing of such a
motion; the court shall conduct a hearing and either deny the motion or certify to the Law Court that
it would grant the motion.” M.R.U. Crim. P. 33. Upon receipt of notice that a motion for a new hearing
has been filed, we will ordinarily stay the appeal. Should the court then certify that it would grant
the motion—meaning that it would vacate its judgment revoking the appellant’s probation and order
a new hearing—we will dismiss the pending appeal as moot and remand. If the court denies the
motion, the defendant, if he or she wishes, may file a separate application to allow a discretionary
appeal from that decision, which, if granted, would be joined with the pending appeal from the
judgment on the probation revocation motion if we have allowed that appeal to proceed, and the
pending appeal will then proceed to resolution.
                                                                                 13


ALEXANDER, J., concurring.

      [¶18] I concur that, in a probation revocation hearing, a defendant has a

right to the effective assistance of counsel. I also concur that the petitioner, and

others similarly situated, have a right to an evidentiary hearing, before the trial

court, to adjudicate properly articulated claims of ineffective assistance of

counsel allegedly occurring during the course of a probation revocation

proceeding. The authority to provide such an evidentiary hearing has existed

for 200 years. The Maine Constitution includes article I, section 10, specifying,

among other things, that “the privilege of the writ of habeas corpus shall not be

suspended, unless when in cases of rebellion or invasion the public safety may

require it.”

      [¶19]    In 1961 we opined that the protection of a habeas corpus

fact-finding proceeding is available, even if the Legislature should legislate to

the contrary, in matters where the government seeks to impose restraints on

individuals, including in civil commitment proceedings. Opinion of the Justices,

157 Me. 187, 210-211, 170 A.2d 660 (1961). There, the question presented

was: “may the Legislature provide that the Writ of Habeas Corpus shall not be

available to any such person, notwithstanding the provisions of [a]rticle I,

[s]ection 10, of the Constitution of Maine?” Id., 157 Me. at 211, 170 A.2d 660.
14

We responded: “The ‘great writ of liberty’ must not be destroyed or weakened.

Stuart v. Smith, 101 Me. 397[, 64 A. 663 (1906)]. The writ of habeas corpus

must remain available at all times to any person hospitalized under an Act such

as L.D. 1496.” Opinion of the Justices, 157 Me. at 211, 170 A.2d 660.

         [¶20] In 1985 we held that the then relatively new post-conviction

review statute5 in effect replaced prior writ of habeas corpus practice, and

because it did so, the new post-conviction review statute could not be

construed to bar an evidentiary hearing to review a claim of ineffective

assistance of counsel in an appeal from an order denying a post-judgment

motion. Kimball v. State, 490 A.2d 653 (Me. 1985). In Kimball, a trial court had

determined that, in a post-conviction proceeding, it lacked jurisdiction to

review a claim of ineffective assistance of counsel in proceedings on a motion

for new trial and on an appeal from the denial of that motion. Id. at 657.

         [¶21] We held that the post-conviction justice erred in determining that

he did not have jurisdiction. Id. In our opinion, we noted:

                Our conclusion is reinforced by the fact that Kimball's
         petition for post-conviction review of the effectiveness of his new
         trial motion counsel would have been recognized in a petition for a
         writ of habeas corpus at common law. That fact alone requires that
         post-conviction review be available in this case, since art. I, § 10 of
         the Maine Constitution forbids suspension of the privilege of the

     The present post-conviction review statute, 15 M.R.S. §§ 2121-2132 (2018) was originally
     5

enacted in 1980 by P.L. 1979, ch. 701, § 15 (effective July 3, 1980).
                                                                                                15

       writ of habeas corpus, and since statutory post-conviction review
       completely “replaces the remedies available pursuant to
       post-conviction habeas corpus, to the extent that review of a
       criminal conviction or proceedings were reviewable . . . .”
       15 M.R.S.A. § 2122. The post-conviction statute itself provides
       “that this chapter shall provide and shall be construed to provide
       such relief for those persons required to use this chapter as is
       required by the Constitution of Maine, [a]rticle I, [s]ection 10.”

Kimball, 490 A.2d at 658-59 (citation omitted) (first alteration in original).

       [¶22] The Kimball court further held that a “Petitioner’s right to effective

assistance of counsel on appeal from the denial of his new trial motion flows by

extension from his right to such counsel at the trial court level, and from the

well-known principle that once a state chooses to provide appellate review of a

class of proceedings, it must furnish counsel to indigents who wish to exercise

their right to appeal.” Id. at 659.6

       [¶23] Disregarding prior history and precedent directly on point, the

Court deems that it must act legislatively to “announce” a new procedure,

overrule or modify a prior opinion, State v. Nichols, 1997 ME 178, ¶¶ 4-5,

698 A.2d 521, and, without any rulemaking, in effect amend M.R.U. Crim. P. 33.

The Court takes these actions to “afford[] a defendant fundamental fairness by



   6 In Manley v. State, 2015 ME 117, ¶ 18, 123 A.3d 219, we suggested that Kimball, and other

opinions, may have too narrowly construed the two-part ineffective assistance of counsel test
articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984). However, we have never suggested
that Kimball’s application of art. I, § 10 of the Maine Constitution does not remain good law.
16

allowing an ineffective assistance claim in the context of a probation revocation

proceeding to be heard, and . . . provide[] us with a fully-developed evidentiary

record, similar to that resulting from a post-conviction review hearing, on

which to consider such a claim.” Court’s Opinion ¶ 15 (citation omitted).

      [¶24] I do not concur with the Court’s analysis that we must create and

announce a new process to provide the evidentiary hearing sought on the

petitioner’s claim of ineffective assistance of counsel in a probation revocation

proceeding.

      [¶25] The post-conviction review statute states that a “revocation of

probation,” although it may impose a restraint on an individual, is not a

“[p]ost-sentencing proceeding.” 15 M.R.S. § 2121(2) (2018). Thus, by statute,

the post-conviction review process, which is, “except for direct appeals from a

criminal judgment, [the] exclusive method of review . . . of post-sentencing

proceedings,” 15 M.R.S. § 2122 (2018), appears, at least superficially, to not be

available to provide the petitioner a remedy in this case. However, and as we

noted in Kimball, section 2122 further states that the post-conviction review

chapter must be “construed to provide . . . relief for those persons required to

use this chapter as is required by the Constitution of Maine, [a]rticle I, [s]ection

10.” Kimball, 490 A.2d at 659.
                                                                              17

      [¶26] Where the writ of habeas corpus was available pursuant to

article I, section 10 to protect fundamental rights, the rule of construction

stated in section 2122 indicates that habeas corpus relief remains available and

could not be eliminated by enactment of the post-conviction review laws.

Kimball, our 1961 Opinion of the Justices, and the post-conviction statute’s own

rule of construction require that the post-conviction review statutes be

interpreted to provide the trial courts with a residue of authority to conduct an

evidentiary hearing in the nature of a habeas corpus proceeding. This authority

is preserved by Me. Const. article I, section 10, when an individual may be

subject to restraint and ineffective assistance of counsel is alleged to have

occurred in a probation revocation proceeding. No specific rule need be

referenced to provide the petitioner such an evidentiary hearing, nor any new

process need be announced; the process is available as a matter of

constitutional right, and has been for 200 years.

      [¶27] Because the trial court summarily dismissed Petgrave’s petition,

apparently without recognizing its residual authority to afford Petgrave an

evidentiary hearing in the nature of a habeas corpus proceeding, the trial court

may have erred. However, because Petgrave’s petition failed to allege a prima

facie case of ineffective assistance of counsel, any error by the trial court was
18

harmless. Thus, I concur with the Court that we should affirm the trial court’s

judgment.

      [¶28] Standards for determining whether effective assistance of counsel

was provided at a hearing apply the two-part test articulated by the United

States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).

This test requires the claimant to prove that (1) counsel’s representation fell

below an objective standard of reasonableness and (2) there is a reasonable

probability that the end result of the criminal process would have been more

favorable but for the defense counsel's deficient performance. See Missouri v.

Frye, 566 U.S. 134, 147 (2012); Strickland, 466 U.S. at 687.

      [¶29] We have applied this test to evaluate ineffective assistance claims

arising from criminal trials, Fahnley v. State, 2018 ME 92, ¶ 17, 188 A.3d 871;

involuntary commitment proceedings, In re Henry B., 2017 ME 72, ¶ 9,

159 A.3d 824; and proceedings to terminate parental rights, In re M.P.,

2015 ME 138, ¶ 26, 126 A.3d 718. We have noted, “The Strickland standard is

known to the bar and the bench, and Strickland carries with it a developing

body of case law, which will aid courts in the efficient and timely resolution of

such claims.” In re M.P., 2015 ME 138, ¶ 26, 126 A.3d 718; see also In re Henry B.,
                                                                                19

2017 ME 72, ¶ 8, 159 A.3d 824 (“Strickland is a well-known and developing

standard.”).

      [¶30] The Court’s opinion accurately states the bare bones nature of

Petgrave’s petition asserting ineffective assistance of counsel: “Petgrave, with

new counsel, filed a petition for post-conviction review in the trial court

alleging that his counsel had been ineffective at the revocation hearing in failing

to call unspecified witnesses and in ‘fail[ing] to present a proper defense.’”

Court’s Opinion ¶ 5 (alteration in original). Nowhere in Petgrave’s petition is

there any suggestion as to who the “unspecified” witnesses might be, what

testimony they might have offered, or how prior counsel failed to present a

“proper defense.”

      [¶31] The Strickland standards, as we articulated them in Fahnley,

2018 ME 92, ¶ 17, 188 A.3d 871, require a finding that the “errors of counsel

actually had an adverse effect on the defense.” Petgrave’s bare bones petition

failed to articulate a prima facie case even for this minimal “adverse effect on

the defense” standard. Had the trial court not summarily dismissed Petgrave’s

petition for the reasons it did, it would have been required to dismiss the

petition for failure to demonstrate a prima facie claim of ineffective assistance

of counsel.    Thus, even if the trial court erred in denying Petgrave the
20

opportunity for an evidentiary hearing on his ineffective assistance claim, the

error, if any, was harmless.

        [¶32] An error is harmless when the error did not result in substantial

injustice or affect substantial rights, M.R.U. Crim. P. 52(a), or “if it is highly

probable that the error did not affect the judgment.”                State v. Guyette,

2012 ME 9, ¶ 19, 36 A.3d 916; see also Williams v. United States, 503 U.S. 193,

203 (1992). Nothing in the record before us suggests what an acceptably

skilled counsel might have done differently to alter the result of the probation

revocation hearing.

        [¶33] Because the trial court did not reach the merits in dismissing

Petgrave’s petition, its ruling, affirmed in this appeal, does not bar a subsequent

petition, if a petition can be filed that articulates a prima facie claim meeting the

Strickland standards.       Accordingly, I concur in the Court’s affording the

petitioner another opportunity to file and have an evidentiary hearing on a

proper petition.



David Paris, Esq. (orally), Bath, for appellant Jonathan A. Petgrave

R. Christopher Almy, District Attorney, and Mark A. Rucci, Asst. Dist. Atty.
(orally), Prosecutorial District V, Bangor, for appellee State of Maine

Aroostook County Unified Criminal Docket docket number CR-2018-118
FOR CLERK REFERENCE ONLY
