PINEO v. STATE, 2006 ME 119

908 A.2d 632

Robert PINEO v. STATE of Maine.

Supreme Judicial Court of Maine.Argued: June 12, 2006.
Decided: October 23, 2006.

Appeal from the Superior Court, Cumberland County, Warren, J.

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William Maselli, Portland, for plaintiff.

Stephanie Anderson, District Attorney, Julia A. Sheridan, Asst. Dist. Attorney, Portland, for State.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

CLIFFORD, J.

[¶ 1] Robert Pineo appeals from a judgment entered in the Superior Court (Cumberland County, Warren, J.) denying his amended petition for post-conviction review based on his claim of ineffective assistance of counsel.[1] Pineo contends that the post-conviction court applied the wrong standards in determining whether he was provided effective assistance of counsel at his trial. Pineo also argues that he was denied effective assistance of counsel. when his defense attorney made unreasonable strategic choices without his consent, including the attorney’s concession to the jury during his opening statement and closing argument that Pineo was guilty of some of the charges he was facing.[2] We are unpersuaded by Pineo’s contentions, and affirm the judgment.

I. BACKGROUND [¶ 2] Pineo was convicted of two counts of aggravated assault (Class B), 17-A

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M.R.S. § 208 (2005); one count of aggravated operating under the influence (Class C), 29-A M.R.S.A. § 2411(6) (Supp. 2001);[3] and two counts of driving to endanger (Class E), 29-A M.R.S. § 2413 (2005), following a jury trial conducted by the Superior Court (Cole, J.) in 2001. The charges stemmed from a motor vehicle accident in which Pineo, who had a blood-alcohol level of 0.16%, caused serious injury to the driver, and permanent injury to the passenger, of another vehicle. The court sentenced Pineo to serve a total of fifteen years imprisonment.[4] Pineo appealed, and we affirmed his convictions and his sentence in State v. Pineo, 2002 ME 93, 798 A.2d 1093. This appeal arises out of Pineo’s post-conviction review petition, which he filed in October of 2002 and amended in May of 2003.

[¶ 3] Pineo contends that he was denied effective assistance of counsel due to the trial strategy employed by his defense attorney, who was privately retained. Pineo’s attorney conceded Pineo’s guilt to the charges of aggravated OUI and driving to endanger, and focused instead on defending Pineo against the more serious Class B charges of aggravated assault. Pineo is critical of other strategic choices made by his attorney at trial, asserting, inter alia, that his attorney did not attempt to fully discredit the blood-alcohol evidence with expert testimony; that he failed to argue that Pineo did not cause the accident; that he failed to offer a psychological report at trial and at sentencing, a report that went to Pineo’s state of mind at the time of the offenses; and that he made disparaging comments about Pineo to the jury during closing argument.

[¶ 4] The post-conviction court considered evidence that, during his opening statement, Pineo’s attorney conceded Pineo’s guilt on the aggravated OUI charge, but contended the evidence would show that Pineo did not commit aggravated assault. During his closing argument, Pineo’s attorney told the jury that Pineo should be held responsible for the crimes that the State had proved beyond a reasonable doubt, that is, the aggravated OUI and driving to endanger charges.[5] The attorney then told the jury, “You may want to take [Pineo] out and lynch him, but you can’t.” In the remainder of his

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closing argument, Pineo’s attorney, attempting to convince the jury that Pineo did not commit the crime of aggravated assault, extensively analyzed the evidence and contended that the State failed to prove recklessness. The attorney also argued that Pineo’s high blood-alcohol level was due to contaminated testing conditions,[6] and urged the jury to hold the State to its high burden of proof, “as much as you may want to take Mr. Pineo out back and throttle him.”[7]

[¶ 5] The evidence revealed that Pineo paid a substantial fee to his attorney’s law firm, and that his trial attorney had many years of criminal trial experience. Pineo also paid $9000 for a blood-alcohol expert, and $4500 for a psychological evaluation. Pineo testified that his initial discussions with defense counsel led him to believe that, if he pleaded guilty, he might be admitted to the drug court program and be subject to some house arrest. The State’s firm plea offer, however, was for ten years imprisonment, with all but eight years suspended. Defense counsel explained to Pineo on more than one occasion, both orally and in writing, that there was no viable defense to the aggravated OUI charge, and that Pineo should accept the plea offer. The attorney thought it unlikely that Pineo would be successful in excluding the results of the blood-alcohol test from the evidence, and that Pineo should expect to be sentenced to at least five years imprisonment for the aggravated OUI conviction. The attorney also warned Pineo of the inherent risks of going to trial, including the possibility of receiving consecutive sentences of up to fifteen years imprisonment. Pineo, however, remained steadfast in refusing to accept the State’s plea offer, and insisted on going to trial.

[¶ 6] Faced with the prospect of defending a case with overwhelming evidence of guilt, as well as seriously injured, sympathetic victims, defense counsel informed Pineo that, as a matter of trial strategy, he would not attack the blood-alcohol test, nor would he argue that Pineo was not intoxicated. Rather, the attorney chose to focus his attention on defending against the aggravated assault charges, arguing to the jury that the State failed to prove that Pineo acted with a reckless state of mind.[8] The attorney advised Pineo that if baseless arguments were made to the jury, including the contention that Pineo was not intoxicated, it would undermine Pineo’s credibility with the jury on the aggravated assault defense. The attorney also informed Pineo that he would not call a defense expert as a witness to present an abnormal condition of the mind defense on

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the aggravated OUI charge because the psychological report prepared on Pineo by the expert contained damaging information unknown to the State that, if disclosed during trial, could undermine Pineo’s defense and negatively impact him during sentencing.

[¶ 7] Pineo’s attorney testified at the post-conviction hearing that Pineo relied on the attorney’s judgment to create this strategy, and Pineo was “on board” and “adopted” it. The attorney explained that although Pineo never explicitly agreed to the strategy, he never expressed any objection to it, nor did Pineo make any suggestions or give any indication to the attorney that the strategy should not be pursued. Pineo’s attorney also testified that when the motion in limine to exclude the blood-alcohol test from evidence was denied, he again discussed the strategy with Pineo on the morning of the trial, explaining to Pineo that there was no way to defeat the aggravated OUI charge, and that the focus of the defense would be on defending against the aggravated assault charges. According to the attorney, Pineo again voiced no objection.

[¶ 8] Pineo testified that although he left it up to his attorney to create a trial strategy, he did not recall having any conversations or receiving any correspondence from his attorney explaining the trial strategy. Pineo further testified that if he had been consulted, he would not have agreed to the attorney’s strategy.

[¶ 9] The post-conviction court found that Pineo had been informed of the trial strategy by his attorney, orally and in writing; that Pineo was aware of and consented to the strategy; and that, given the facts of the case, the strategy was not manifestly unreasonable. Concluding that Pineo failed to prove that he was denied effective assistance of counsel, the court denied his petition for post-conviction review. This appeal by Pineo followed.

II. DISCUSSION
A. Constitutional Standards for Assessing Ineffective Assistance of Counsel Claims

[¶ 10] Both the United States Constitution and the Maine Constitution ensure that a criminal defendant is entitled to receive the effective assistance of counsel.[9] U.S. CONST. amend. VI; ME. CONST. art. I, § 6; see Whitmore v. State, 670 A.2d 394, 396 (Me. 1996). “The primary purpose of the effective assistance of counsel requirement is to ensure a fair trial.” McGowan v. State, 2006 ME 16, ¶ 9, 894 A.2d 493, 496 (citing Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We employ a “reasonably competent assistance” standard for evaluating ineffective assistance of counsel claims, see Levesque v. State, 664 A.2d 849, 851 (Me. 1995), which follows, and is nearly identical to, the objective reasonableness standard articulated i Strickland,[10] McGowan, 2006 ME 16, ¶12,

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894 A.2d at 497. To prevail on a claim of ineffective assistance of counsel, a post-conviction petitioner has the burden of demonstrating two components to the post-conviction court: “First, whether there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance below what might be expected from an ordinary fallible attorney; and second, whether any such ineffective representation likely deprived the defendant of an otherwise available substantial ground of defense.” Id. ¶ 11, 894 A.2d at 496-97
(quotation marks and alteration omitted); see also Levesque, 664 A.2d at 851. Given the fact-laden inquiry in evaluating ineffective assistance of counsel claims, whether a petitioner has satisfied his burden of meeting this two-prong test is determined on a case-by-case basis. McGowan, 2006 ME 16, ¶ 12, 894 A.2d at 497.

B. Standard of Review

[¶ 11] We have traditionally applied a deferential standard of review to the findings of a post-conviction court, and “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.” Aldus v. State, 2000 ME 47, ¶ 14, 748 A.2d 463, 468 (quotation marks omitted). We have been urged to adopt a bifurcated standard of review in appeals from cases, including post-conviction review, in which the factual findings of the post-conviction court would be reviewed for clear error, and the legal conclusions reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 695-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); McGowan, 2006 ME 16, ¶ 14, 894 A.2d at 497-98. It is unnecessary for us to address whether we should change the standard of review in this case, however, because Pineo’s arguments are not persuasive under either a clear error or a bifurcated standard. See McGowan, 2006 ME 16, ¶ 14, 894 A.2d at 498.

C. Deference Accorded to Defense Counsel’s Trial Strategy

[¶ 12] Pineo also contends that we should follow the presumed prejudice standard set forth in United States v. Cronic, 466 U.S. 648, 661-62, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and vacate his convictions.[11] The State contends that Cronic does not apply to this case, that Pineo’s

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contentions must be evaluated pursuant to the reasonably competent assistance standard, and that the court’s finding that Pineo consented to the trial strategy of conceding guilt on some charges is not clearly erroneous. We agree with the State.

[¶ 13] Unless the standard of Cronic is applied, “[d]eference to strategic or tactical decisions of the trial attorney is substantially heightened.” Levesque, 664 A.2d at 851 (emphasis added); see also Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052 (providing that defense counsel’s performance is judged from a “highly deferential” standard, i.e., an objective standard of reasonableness, which includes reasonableness according to professional norms and all the circumstances of the particular case). These strategic and tactical decisions by defense counsel must be manifestly unreasonable to result in a new trial based on ineffective assistance of counsel. See Levesque, 664 A.2d at 851. The United States Supreme Court, mindful of the many strategic choices that must be made by criminal defense attorneys in planning for trial, has stated:

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.

Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052.

[¶ 14] Pineo argues that his attorney’s concession strategy should not be afforded substantially heightened deference in this case, and that, pursuant to the standard applied i Cronic, we should presume the attorney’s performance was deficient. We disagree. Recently, in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the United States Supreme Court reviewed a trial strategy of conceding guilt, unanimously holding that an attorney’s failure to obtain express consent to the strategy did not automatically render the attorney’s performance ineffective, and that concession strategies must be evaluated pursuant t Strickland’s objective reasonableness standard rather than Cronic’s presumed prejudice standard. Id.
at 178-79, 125 S.Ct. 551. In Nixon, there was overwhelming evidence of guilt, and the defendant’s very experienced defense counsel was unable to obtain a favorable plea bargain on his behalf. Id. at 180-81, 125 S.Ct. 551. Even though the defendant did not affirmatively accept or reject the trial concession strategy after his attorney attempted to explain it to him, the attorney, during opening statement and closing argument, conceded the defendant’s guilt to murder, focusing his attention on the mitigation evidence presented during the penalty phase of the trial. Id. at 181-83, 125 S.Ct. 551. Nixon’s attorney adopted this strategy to preserve credibility before the jury in the hope of saving the defendant’s life by avoiding the death penalty. Id.
at 180-82, 125 S.Ct. 551. The death penalty was imposed on Nixon. Id. at 184, 125 S.Ct. 551. The Florida Supreme Court vacated Nixon’s conviction and ordered that he be granted a new trial. Id. at 184, 125 S.Ct. 551. The Supreme Court reversed that judgment, concluding that the Florida Supreme Court had erroneously applied the Cronic
standard when it vacated Nixon’s convictions. Id. at 189-91, 125 S.Ct. 551. The Supreme Court held that “[a] presumption of prejudice is not in order based solely on a defendant’s failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with the

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defendant.” Id. at 179, 125 S.Ct. 551 (emphasis added). The Supreme Court noted that “Cronic recognized a narrow exception” to the Strickland standard, “reserved for situations in which counsel has entirely failed to function as the client’s advocate.” Id.
at 189-90, 125 S.Ct. 551 (emphasis added) (discussing wh Cronic “infrequently” applies to ineffective assistance of counsel claims).

[¶ 15] Nixon makes clear that Cronic can be applied only when defense counsel utterly fails in defending a client. In this case, Pineo’s attorney filed motions in limine, even though unsuccessful, to exclude the blood-alcohol test and the testimony of witnesses who had seen Pineo’s truck swerve down the road minutes before the collision. The attorney called and cross-examined witnesses, and made various objections during the trial. He attempted to focus the jury’s attention on the weaknesses of the aggravated assault charges. The attorney also obtained a favorable jury instruction for Pineo, and, at sentencing, filed a motion to vacate the aggravated assault and driving to endanger convictions. It cannot be said that the attorney utterly failed as Pineo’s advocate.

[¶ 16] Reviewed pursuant to the substantially heightened deference standard accorded to a criminal defense attorney’s strategic choices, Pineo’s attorney’s concession of guilt strategy was not below the performance expected of an ordinary, fallible attorney, and that strategy was not manifestly unreasonable. See McGowan, 2006 ME 16, ¶ 11, 894 A.2d at 496-97; Levesque, 664 A.2d at 851; see also Nixon, 543 U.S. at 179, 125 S.Ct. 551; Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. There was overwhelming evidence of Pineo’s guilt. Arguing that Pineo was not intoxicated, especially after the loss of a motion in limine to exclude the blood-alcohol test, or that Pineo was not the cause of the accident, despite overwhelming evidence to the contrary, could reasonably be perceived as being likely to undermine the defendant’s credibility before the jury and with the court at sentencing. In addition, the attorney’s comments to the jury that they should hold the State to its high burden of proof and focus on the evidence, despite their possible desire to “lynch” or “throttle” Pineo, were not manifestly unreasonable because they were geared toward lessening both the emotional impact of the testimony of the sympathetic victims and the visceral reaction that defense counsel perceived the jury felt toward Pineo. Moreover, the attorney’s decisions not to call an expert witness to offer a psychological report about Pineo’s mental state, and not to request a presentence investigation for the sentencing hearing,[12] are strategic choices entitled to substantially heightened deference.

Pineo was faced with a mountain of incriminating evidence, and his attorney chose an ultimately unsuccessful trial strategy, a strategy Pineo later regretted. It was Pineo’s burden to demonstrate to the court that he was denied effective assistance of counsel. There is competent record evidence to support the court’s finding that Pineo impliedly consented to the concession strategy, and that the strategy and other defense tactics did not amount to ineffective assistance of counsel. See Aldus, 2000 ME 47, ¶ 14, 748 A.2d at 468.

The entry is:

Judgment affirmed.

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