MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	176	
Docket:	   Aro-16-186	
Argued:	   May	11,	2017	
Decided:	  August	8,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               HORACE	W.	SALLEY	III	
                                        	
                                       v.	
                                        	
                                 STATE	OF	MAINE	
	
	
SAUFLEY,	C.J.	

      [¶1]		Horace	W.	Salley	III	appeals	from	a	judgment	entered	by	the	court	

(Aroostook	 County,	 Hunter,	 J.)	 denying	 his	 petition	 for	 post-conviction	 relief.		

Because,	contrary	to	the	court’s	conclusion,	Salley	did	not	waive	his	challenge	

to	counsel’s	effectiveness	regarding	a	specific	witness’s	testimony	at	trial,	we	

vacate	the	judgment	and	remand	the	matter	for	further	consideration	of	that	

post-conviction	issue.		

                                   I.		BACKGROUND	

	     [¶2]	 	 In	 2007,	 Salley	 was	 charged	 with	 gross	 sexual	 assault	 (Class	 A),	

17-A	 M.R.S.	 §	 253(1)(A)	 (2016);	 assault	 (Class	 D),	 17-A	 M.R.S.	 §	 207(1)(A)	

(2016);	 and	 tampering	 with	 a	 victim	 (Class	 B),	 17-A	 M.R.S.	 §	 454(1-B)(A)(1)	

(2016).		The	State	alleged	that	Salley	had	committed	gross	sexual	assault	and	
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assault	against	his	wife	in	September,	October,	or	November	2006.		A	jury	trial	

was	held	over	the	course	of	three	days	in	August	2008.			

	      [¶3]	 	 During	 the	 trial,	 Salley’s	 wife	 testified	 that,	 at	 one	 point,	 she	 had	

recanted;	that	is,	she	told	others	that	she	was	lying	about	her	report	of	Salley’s	

assault	and	gross	sexual	assault.		She	testified	that	her	recantation	was	not	the	

truth	 and	 that	 it	 was	 motivated	 by	 two	 considerations:	 (1)	 she	 had	 been	

offered	money	in	exchange	for	her	refusal	to	testify	against	Salley,	and	(2)	she	

was	afraid	of	Salley	and	had	their	young	child	in	her	care.			

	      [¶4]	 	 In	 the	 presentation	 of	 his	 defense,	 Salley’s	 attorney	 called	 a	

Department	 of	 Health	 and	 Human	 Services	 caseworker	 as	 a	 witness.	 	 As	 the	

attorney	 later	 testified	 at	 the	 post-conviction	 hearing,	 his	 goal	 in	 calling	 this	

witness	in	Salley’s	defense	was	to	demonstrate	that	only	after	the	Department	

threatened	 Salley’s	 wife	 with	 the	 termination	 of	 her	 parental	 rights	 did	 she	

“recant”	 her	 recantation	 and	 reassert	 her	 earlier	 statement	 that	 Salley	 had	

assaulted	 her.	 	 Salley’s	 wife	 had	 testified	 that	 in	 January	 2007,	 after	 she	

recanted	 her	 previous	 report	 of	 assault	 and	 sexual	 assault,	 the	 Department	

removed	her	infant	child	from	her	care	pursuant	to	a	preliminary	protection	

order	entered	in	a	child	protection	proceeding.		In	examining	the	caseworker,	

Salley’s	 trial	 counsel	 elicited	 testimony	 that	 a	 petition	 for	 termination	 of	
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parental	 rights	 to	 her	 older	 child	 was	 also	 filed	 sometime	 after	 December	1,	

2006.		In	developing	this	testimony,	Salley’s	trial	counsel	intended	to	convince	

the	 jury	 that	 Salley’s	 wife	 was	 not	 a	 credible	 witness	 and	 that	 she	 had	

reasserted	her	accusations	against	him	only	to	appease	the	Department.			

	      [¶5]		On	cross-examination,	the	State	inquired	about	the	reasons	for	the	

Department’s	 involvement	 with	 the	 mother	 as	 to	 the	 older	 child.	 	 The	

caseworker	 testified	 that	 the	 Department	 had	 alleged	 neglect	 on	 her	 part	

because	she	had	allowed	the	child	to	have	contact	with	Salley,	who,	due	to	his	

prior	behavior	and	his	criminal	history,	was	considered	to	pose	a	risk	to	the	

child.			

	      [¶6]		The	court	stopped	the	questioning	at	that	point,	brought	counsel	to	

sidebar,	 and	 inquired	 about	 the	 propriety	 of	 exploring	 Salley’s	 criminal	

history.	 	 Salley’s	 counsel	 then	 objected	 to	 any	 hearsay.	 	 The	 court	 did	 not	

formally	 rule	 on	 the	 objection	 that	 was	 made	 in	 response	 to	 the	 court’s	

questions	at	sidebar;	Salley’s	counsel	did	not	request	a	curative	instruction	or	

move	for	a	mistrial;	and	no	further	questions	on	the	subject	were	posed	to	the	

caseworker.			

	      [¶7]		The	jury	found	Salley	guilty	of	all	three	crimes,	and	a	judgment	of	

conviction	 was	 entered.	 	 With	 new	 counsel,	 Salley	 appealed	 from	 the	
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judgment,	 but	 he	 did	 not	 raise	 an	 argument	 that	 the	 court	 had	 erred	 in	 its	

response	 to	 the	 caseworker’s	 testimony	 on	 cross-examination	 regarding	

Salley’s	criminal	history	and	involvement	with	the	Department.		We	affirmed	

the	judgment	in	a	memorandum	of	decision.		See	State	v.	Salley,	Mem-09-193	

(Dec.	1,	2009).	

	     [¶8]	 	 On	 December	 2,	 2010,	 Salley	 filed	 a	 petition	 for	 post-conviction	

review.	 	 The	 petition,	 as	 later	 amended,	 challenged	 the	 effectiveness	 of	 both	

trial	 and	 appellate	 counsel.	 	 Pertinent	 to	 the	 matter	 before	 us,	 Salley	 argued	

that	he	had	been	deprived	of	the	effective	assistance	of	trial	counsel	because	

trial	 counsel	 “opened	 the	 door”	 to	 damaging	 evidence	 or	 failed	 to	 object	 to	

testimony	elicited	on	cross-examination.			

	     [¶9]		After	a	hearing	at	which	Salley,	his	trial	counsel,	and	his	appellate	

counsel	testified,	the	court	denied	the	petition	for	post-conviction	relief.		The	

court	first	declined	to	consider	the	effectiveness	of	trial	counsel	in	reacting	to	

the	 caseworker’s	 testimony	 on	 cross-examination	 because	 the	 court	 viewed	

the	issue	as	a	claim	of	“[e]rror[]	at	the	trial	that	.	.	.	could	have	been	raised	on	a	

direct	 appeal.”	 	 15	 M.R.S.	 §	2128(1)	 (2016).	 	 The	 court	 found	 no	 ineffective	

assistance	 by	 trial	 counsel	 on	 the	 other	 items	 challenged	 by	 Salley,	 and	 it	

found	that	appellate	counsel’s	decision	not	to	challenge	on	appeal	the	court’s	
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decisions	 regarding	 the	 caseworker’s	 testimony	 was	 not	 objectively	

unreasonable	 and	 that	 there	 was	 no	 clear	 indication	 that	 Salley	 would	 have	

prevailed	on	appeal	if	counsel	had	raised	the	hearsay	issue.			

	        [¶10]	 	 Salley	 timely	 petitioned	 for	 a	 certificate	 of	 probable	 cause	

authorizing	appellate	review	of	the	post-conviction	judgment.		We	granted	the	

petition	only	as	to	whether	the	court	erred	in	its	determination	that	Salley,	by	

failing	 to	 raise	 the	 issue	 on	 appeal,	 had	 waived	 the	 claim	 of	 trial	 counsel’s	

ineffectiveness	        in	   responding	         to	    the	    caseworker’s	         answers	       on	

cross-examination.1		See	15	M.R.S.	§	2131(1)	(2016);	M.R.	App.	P.	2,	19(a)(vi),	

(c),	(f).		

                                          II.		DISCUSSION	

	        [¶11]	 	 The	 post-conviction	 court	 determined	 that	 the	 “improperly	

admitted	 evidence	 [of	 Salley’s	 criminal	 record]	 is	 a	 matter	 that	 could	 have	

been	raised	on	appeal.”		Relying	on	15	M.R.S.	§	2128(1),	the	court	determined	

that	the	failure	to	raise	the	evidentiary	issue	on	appeal	constituted	a	waiver	of	




    1	
     	 Accordingly,	 we	 do	 not	 disturb	 the	 post-conviction	 court’s	 determination	 regarding	 the	
effectiveness	 of	 appellate	 counsel.	 	 As	 the	 post-conviction	 court	 found,	 appellate	 counsel	 not	
unreasonably	decided	to	forego	an	obvious	error	challenge	because,	given	the	trial	court’s	cautious	
and	 appropriate	 raising	 of	 the	 issue	 regarding	 evidence	 of	 Salley’s	 prior	 convictions,	 such	 a	
challenge	 would	 not	 likely	 succeed	 and	 could	 distract	 from	 or	 “water	 down”	 other	 appellate	
challenges.			
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the	issue	of	trial	counsel’s	effectiveness	on	that	evidentiary	issue	for	purposes	

of	post-conviction	review.			

	      [¶12]	 	 The	 court	 correctly	 determined	 that	 section	 2128	 requires	 a	

petitioner	 for	 post-conviction	 review	 to	 “demonstrate	 that	 any	 ground	 of	

relief	has	not	been	waived.”		15	M.R.S.	§	2128	(2016);	see	also	Roberts	v.	State,	

2014	ME	125,	¶	21,	103	A.3d	1031.		The	statute	specifically	provides,	“Errors	

at	 the	 trial	 that	 have	 been	 or	 could	 have	 been	 raised	 on	 a	 direct	 appeal,	

whether	or	not	such	an	appeal	was	taken,	may	not	be	raised	in	an	action	for	

post-conviction	 review	 under	 this	 chapter,”	 with	 a	 limited	 exception	 not	

raised	here.		15	M.R.S.	§	2128(1).	

	      [¶13]	 	 The	 court	 also	 correctly	 concluded	 that	 a	 person	 convicted	 of	 a	

crime	may,	in	a	direct	appeal	from	a	judgment,	raise	arguments	that	the	court	

erred	in	admitting	challenged	evidence	at	trial.		See	15	M.R.S.	§	2115	(2016).		

For	instance,	a	convicted	person	may	appeal	from	a	court	decision	regarding	

the	 admissibility	 of	 evidence,	 see,	 e.g.,	 State	 v.	 Pillsbury,	 2017	 ME	 92,	 ¶¶	 15,	

22-24,	 ---	 A.3d	 ---,	 or	 a	 decision	 denying	 a	 motion	 for	 a	 mistrial	 if	 unduly	

prejudicial	evidence	is	erroneously	put	before	the	jury,	see,	e.g.,	State	v.	Butts,	

372	A.2d	1041,	1042	(Me.	1977).		Appellate	review	on	those	issues	addresses	
                                                                                          7	

asserted	error	on	the	part	of	the	trial	court.		See	State	v.	Daluz,	2016	ME	102,	

¶	60,	143	A.3d	800;	State	v.	Mair,	670	A.2d	910,	911-12	(Me.	1996).				

	      [¶14]	 	 Unlike	 claims	 of	 error	 in	 court	 rulings,	 however,	 claims	 of	

ineffective	assistance	of	counsel	cannot	be	raised	on	direct	appeal.		See	Reese	

v.	 State,	 2017	 ME	 40,	 ¶	 6	 n.4,	 157	 A.3d	 215.	 	 Because	 Salley	 could	 not	 have	

challenged	the	actions	of	trial	counsel	on	direct	appeal,	he	cannot	have	waived	

that	claim	for	purposes	of	section	2128.		Thus,	whether	or	not	the	trial	court’s	

actions	were	challenged	on	appeal,	trial	counsel’s	conduct	and	decisions	may	

be	 challenged	 through	 an	 ineffective	 assistance	 claim	 in	 a	 post-conviction	

proceeding.		See	U.S.	Const.	amend.	VI;	Strickland	v.	Washington,	466	U.S.	668,	

686	(1984);	Roberts,	2014	ME	125,	¶	21,	103	A.3d	1031.			

       [¶15]		Simply	put,	because	ineffectiveness	of	counsel	cannot	be	raised	in	

a	 direct	 appeal,	 failure	 to	 do	 so	 cannot	 be	 deemed	 a	 waiver	 of	 such	 a	 claim.		

See	 15	 M.R.S.	 §	 2128(1);	 Reese,	 2017	 ME	 40,	 ¶	 6	 n.4,	 157	 A.3d	 215.	 	 A	

post-conviction	 petitioner	 may	 raise	 the	 issue	 of	 trial	 counsel’s	 effectiveness	

regarding	 a	 matter	 of	 evidence	 even	 if	 the	 argument	 that	 the	 court	 erred	 in	

ruling	on	an	underlying	evidentiary	issue	could	have	been,	but	was	not,	raised	

on	appeal.		See	Roberts,	2014	ME	125,	¶	21,	103	A.3d	1031.			
8	

       [¶16]	 	 Here,	 the	 issue	 before	 the	 court	 on	 post-conviction	 review	 was	

whether	trial	counsel	was	ineffective	for	failing	to	raise	a	timely	objection	or	

seek	 a	 curative	 instruction	 or	 a	 mistrial	 when	 the	 evidentiary	 issue	 arose.		

That	issue—the	effectiveness	of	trial	counsel—could	not	have	been	raised	on	

direct	appeal,	see	Reese,	2017	ME	40,	¶	6	n.4,	157	A.3d	215,	and	therefore	had	

not	 been	 waived	 within	 the	 meaning	 of	 15	 M.R.S.	 §	2128(1)	 as	 an	 issue	 that	

“could	 have	 been	 raised	 on	 a	 direct	 appeal.”	 	 See	 also	 U.S.	 Const.	 amend.	 VI;	

15	M.R.S.	§	2128-A	(2016);	Strickland,	466	U.S.	at	686,	697-98;	Roberts,	2014	

ME	125,	¶	21,	103	A.3d	1031.	

	      [¶17]		Because	the	trial	court,	relying	on	the	State’s	waiver	theory,	did	

not	 reach	 Salley’s	 argument	 regarding	 trial	 counsel’s	 ineffectiveness	 in	

responding	to	the	testimony	of	the	Department	caseworker,	we	must	remand	

for	 consideration	 of	 that	 claim.	 	 It	 was	 for	 the	 post-conviction	 trial	 court	 to	

determine	whether	trial	counsel’s	actions	and	strategic	decisions	fell	below	an	

objective	standard	of	reasonableness	and	resulted	in	prejudice	to	Salley.		See	

Middleton	v.	State,	2015	ME	164,	¶	12,	129	A.3d	962;	see	also	Strickland,	466	

U.S.	at	689	(stating	that	“the	defendant	must	overcome	the	presumption	that,	

under	 the	 circumstances,	 the	 challenged	 action	 might	 be	 considered	 sound	

trial	strategy”	(quotation	marks	omitted)).		
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         [¶18]		Accordingly,	we	vacate	the	judgment	and	remand	the	matter	for	

the	 court	 to	 consider	 the	 claim	 that	 trial	 counsel	 provided	 ineffective	

assistance	 with	 respect	 to	 the	 caseworker’s	 testimony	 by	 determining	

whether	 trial	 counsel’s	 performance	 was	 deficient,	 resulting	 in	 prejudice	 to	

Salley.		See	Middleton,	2015	ME	164,	¶	12,	129	A.3d	962.	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 the	 court	 to	
                            consider	 the	 claim	 that	 trial	 counsel	 provided	
                            ineffective	 assistance	 with	 respect	 to	 the	
                            caseworker’s	testimony.	
	
	     	     	      	      	     	
	
David	Paris,	Esq.	(orally),	Bath,	for	appellant	Horace	W.	Salley	III	
	
Todd	R.	Collins,	District	Attorney	(orally),	Prosecutorial	District	8,	Caribou,	for	
appellee	State	of	Maine	
	
	
Aroostook	Superior	Court	docket	number	CR-2011-07	
FOR	CLERK	REFERENCE	ONLY	
	
