MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 47
Docket: And-18-84
Argued: February 4, 2019
Decided: March 28, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
BARTOLO P. FORD
v.
STATE OF MAINE
JABAR, J.
[¶1] Bartolo P. Ford appeals from a judgment of the Superior Court
(Androscoggin County, Marden, J.) denying in part and granting in part his
petition for post-conviction review. Ford argues that the court erred by
denying his requested relief concerning his felony convictions despite its
determination that he had established that his trial counsel was ineffective. We
vacate the court’s judgment and remand.
I. BACKGROUND
[¶2] In 2011, Ford filed a petition for post-conviction review alleging
ineffective assistance of counsel on multiple grounds. In its judgment granting
in part and denying in part Ford’s petition, the court made the following
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findings of fact, all of which are supported by competent evidence in the record.
See Middleton v. State, 2015 ME 164, ¶ 2, 129 A.3d 962.
[¶3] In 2008, Ford was indicted on one count of aggravated attempted
murder (Class A), 17-A M.R.S. § 152-A(1)(F) (2018), two counts of aggravated
criminal mischief (Class C), 17-A M.R.S. § 805(1)(C) (2018), two counts of
reckless conduct with a dangerous weapon (Class C), 17-A M.R.S. §§ 211(1),
1252(4) (2018), one count of eluding an officer (Class C), 29-A M.R.S. § 2414(3)
(2018), and one count of theft by unauthorized taking or transfer (Class E),
17-A M.R.S. § 353(1)(A) (2018).1 Following a three-day jury trial in 2010, Ford
was convicted on all counts and the trial court (Marden, J.) sentenced him to
twenty years’ imprisonment, with all but nine years suspended, followed by six
years’ probation.
[¶4] We have previously summarized the facts leading to Ford’s
conviction and the pertinent testimony from his trial:
On the evening of September 15, 2008, Ford led the Auburn police
department on a high-speed chase. The chase began when Ford
sped off after a police officer, suspecting that the concrete well tiles
in the bed of Ford’s truck had been stolen, approached the vehicle
and questioned him. It ended when Ford crashed his F-550 dump
truck into a stream.
1 Ford was also indicted on four counts of theft by receiving stolen property (Class C), 17-A M.R.S.
§ 359(1)(B)(4) (2018), and one count of theft by receiving stolen property (Class B), 17-A M.R.S.
§ 359(1)(B)(1) (2018), but those charges were severed and later dismissed.
3
During the chase, Ford repeatedly used his truck to ram the
pursuing police cruisers. Two cruisers sustained serious damage,
and one officer narrowly escaped being struck by Ford’s dump
truck by scrambling up an embankment moments before Ford
drove his truck into the officer’s cruiser. When he refused to stop,
Ford was fired upon by an Auburn police officer; the bullet hit and
shattered Ford’s hip. Ford ultimately surrendered to a Maine State
Police trooper after crashing his dump truck into a small stream.
He was wet, disheveled, and had blood running down his leg.
Ford argued that he suffered from a mental abnormality as defined
by 17-A M.R.S. § 38 (2012). As evidence of his condition, he
point[ed] to post-traumatic stress disorder, which he attribute[d]
to trauma suffered in the military during Operation Desert Storm,
and injuries sustained in a car accident. Ford also argued that the
prescription medications he consumes to treat his PTSD
contributed to his mental abnormality. Much of this evidence was
presented through expert testimony. Dr. John Dorn, a psychiatrist,
concluded that Ford was “attacking the enemy as he saw it”
because his PTSD caused him to react to the stimuli of flashing
lights and sirens. Dr. Dorn determined that the combination of the
drugs Ford took that day, his concussion from the car accident, and
his PTSD triggered a flashback state that could have lasted for
several hours.
Dr. Carlyle Voss, also a psychiatrist, testified for the State that some
of Ford’s reports made his defense of abnormal condition of the
mind plausible, but that he also believed Ford was exaggerating.
Ultimately, Dr. Voss concluded that Ford was not out of touch with
reality that night. Ford did not testify.
State v. Ford, 2013 ME 96, ¶¶ 2-5, 82 A.3d 75.
[¶5] In 2011, Ford filed a petition for post-conviction review, alleging
ineffective assistance of trial counsel for (1) refusing to permit Ford to testify,
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(2) coercing Ford to reject a plea agreement, (3) failing to file a notice of appeal,
(4) failing to adequately investigate the case, and (5) failing to request a
self-defense jury instruction. The Superior Court (Marden, J.) granted Ford’s
petition solely as to the failure to file a notice of appeal, reinstating Ford’s right
to appeal his conviction, but deferred action on the remaining grounds asserted
pending the outcome of the appeal. See 15 M.R.S. § 2130 (2018).
[¶6] In his appeal, Ford argued that the trial court had erred by failing to
instruct the jury on self-defense and voluntary intoxication, and by not ensuring
that Ford had knowingly, voluntarily, and intelligently waived his right to
testify. State v. Ford, 2013 ME 96, ¶¶ 11, 18, 82 A.3d 75. We affirmed Ford’s
conviction. Id. ¶¶ 17, 23. In particular, we rejected Ford’s assertion relating to
his apparent decision not to testify at trial because the record then before us
did not demonstrate a problem. Id. ¶¶ 18-23. Rather, we noted that a proper
challenge to the role that counsel played in Ford’s failure to testify would need
to be developed in a post-conviction proceeding. Id. ¶ 21 n.6.
[¶7] After we affirmed the convictions, the Superior Court held a
three-day hearing on Ford’s petition for post-conviction review. Following the
hearing, the court found that Ford had been denied his right to effective
assistance of counsel by his trial counsel’s refusal to discuss, “in any manner,
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his right to testify.” The court concluded, however, that the trial counsel’s
actions prejudiced Ford only with regard to his conviction for misdemeanor
theft by unauthorized taking; it thus vacated that conviction and entered a
judgment of not guilty. The court denied Ford’s petition as to his remaining
felony convictions based upon the deprivation of his right to testify—
aggravated attempted murder, aggravated criminal mischief, reckless conduct,
eluding a police officer—and all other stated grounds for relief.
[¶8] Ford sought a certificate of probable cause to appeal the court’s
denial of his petition for post-conviction review. See 15 M.R.S. § 2131(1)
(2018); M.R. App. P. 19(a)(2)(F). We granted the certificate of probable cause
limited to the question of “whether the court erred in denying that part of
Ford’s petition for post-conviction relief based on the alleged deprivation by
trial counsel of his right to testify,” and therefore do not discuss the other
grounds for relief that Ford raised in his petition. See M.R. App. P. 19(f). The
State does not appeal or otherwise challenge the court’s conclusion that Ford
was denied effective assistance of counsel, or that, in regard to the conviction
for theft by unauthorized taking, Ford was prejudiced.
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II. DISCUSSION
[¶9] Ford argues that the post-conviction court erred by failing to
determine that his felony convictions also occurred as a result of a
“fundamentally unfair trial” caused by the deprivation of his right to testify by
his trial counsel. We review the “post-conviction court’s legal conclusions de
novo and its factual findings for clear error.” Fortune v. State, 2017 ME 61, ¶ 12,
158 A.3d 512.
[¶10] “The Sixth Amendment to the United States Constitution and
article I, section 6 of the Maine Constitution ensure that a criminal defendant is
entitled to receive the effective assistance of an attorney.” McGowan v. State,
2006 ME 16, ¶ 9, 894 A.2d 493; see also McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970) (“[T]he right to counsel is the right to the effective assistance
of counsel.”). “The primary purpose of the effective assistance of counsel
requirement is to ensure a fair trial.” McGowan, 2006 ME 16, ¶ 9, 894 A.2d 493.
[¶11] In approaching a claim of ineffective assistance of counsel, we have
recognized that Strickland v. Washington, 466 U.S. 668 (1984), provides the
appropriate standard. See Fortune, 2017 ME 61, ¶ 9, 158 A.3d 512. To prevail
on a claim of ineffective assistance of counsel, a petitioner must demonstrate
(1) “that counsel’s representation fell below an objective standard of
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reasonableness” and (2) that the “errors of counsel . . . actually had an adverse
effect on the defense.” Strickland, 466 U.S. at 688, 693. “The burden is on [the
petitioner] to prove both prongs.” McGowan, 2006 ME 16, ¶ 12, 894 A.2d 493.
A. Deficient Performance
[¶12] As the Superior Court correctly found, trial counsel deprived Ford
of his constitutional right to testify. See State v. Tuplin, 2006 ME 83, ¶¶ 10-11,
901 A.2d 792 (“[T]he federal constitution is [] recognized as guaranteeing the
right to testify . . . .”). The post-conviction court found that Ford’s trial counsel
failed to prepare Ford to testify, failed to inform Ford of his right to testify, and
in fact prevented Ford from testifying by stating, in no uncertain terms, “[t]here
is no f***ing way you’re going to testify.” See State v. Ford, 2013 ME 96, ¶ 21,
82 A.3d 75 (“It is a lawyer’s duty to advise his or her client of all rights, including
the right to testify.”).
[¶13] Given this deprivation, the post-conviction court appropriately
determined that Ford met his burden as to the first prong of the Strickland
analysis. See Owens v. United States, 483 F.3d 48, 58 (1st Cir. 2007) (“[F]ailure
to inform a defendant of his right to testify constitutes performance outside of
an objective standard of reasonable competence, and [] such performance is
constitutionally deficient.”), overruled on other grounds by Weaver v.
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Massachusetts, --- U.S. ---, 137 S. Ct. 1899, 1907-13 (2017); United States v.
Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (“[I]f defense counsel refused to
accept the defendant’s decision to testify and would not call him to the stand,
counsel would have acted unethically to prevent the defendant from exercising
his fundamental constitutional right to testify.”).
B. Actual Prejudice
[¶14] To establish that he was prejudiced by trial counsel’s deficient
performance, Ford “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
[¶15] The post-conviction court concluded that, had Ford been allowed
to testify, there is a reasonable probability that the jury could have determined
that he was not guilty of theft. The court based this on a receipt for the well
tiles and the accompanying testimony that Ford alleges he would have
presented. As to the remaining convictions, the court concluded that Ford
failed to show any actual prejudice. We disagree. Ford’s theft conviction is
inextricably intertwined with the other charges, and the prejudice that Ford
suffered also affected his other convictions.
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[¶16] At Ford’s trial, the jury was presented with two competing
explanations of the events that occurred on the night of September 15, 2008.
Under both theories, the pivotal issue was Ford’s state of mind. The State’s
theory was that Ford was a thief who was attempting to avoid being caught.
Ford’s version of events began with his claim that he was not a thief, and that,
in response to an unwarranted confrontation with the police, he was reliving
traumatic experiences from his military service. According to Ford, when he
was confronted by the police with sirens and flashing lights, his PTSD caused a
“flashback” that made him believe that he was back in a combat zone.
[¶17] Ford asserts that had he been able to exercise his right to testify,
he would have told the jury that he was not stealing the well tiles; he believed
he had permission to take them. Further, he would have detailed the
experiences that he faced in the military and how they have severely affected
him.
[¶18] When “the defendant takes the stand . . . his demeanor can have a
great bearing on his credibility and persuasiveness, and on the degree to which
he evokes sympathy.” Riggins v. Nevada, 504 U.S. 127, 142 (1992) (Kennedy, J.,
concurring). “[T]he defendant’s behavior, manner, facial expressions, and
emotional responses, or their absence, combine to make an overall impression
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on the trier of fact, an impression that can have a powerful influence on the
outcome of the trial.” Id.
[¶19] The court acknowledged that Ford’s testimony could have altered
the outcome of the theft conviction, and the State does not challenge that
determination. If Ford did not believe that he was stealing the well tiles, then
there would have been no reason for Ford to try to avoid being caught. Without
the theft, the State’s explanation for Ford’s actions is less plausible. Although
“motive” is not an element of the charges at issue in the case, the State premised
its prosecution on the theory that Ford was fleeing from an arrest. Because
Ford was prevented from testifying, the jury did not hear crucial testimony that
would have borne directly on the pivotal issue in this case—whether Ford was
suffering from an abnormal state of mind. See Ford, 2013 ME 96, ¶ 4, 82 A.3d
75 (“At trial, Ford argued that he suffered from a mental abnormality . . . .”);
Owens, 483 F.3d at 59 (“A defendant’s testimony could be crucial in any trial,
and it could be difficult for us to determine whether or not a jury would have
found his testimony credible.”).
[¶20] The standard of review on an appeal from a judgment denying a
petition for insufficient evidence is a high one—the petitioner must establish
that the evidence compelled the court to find that he had proved entitlement to
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post-conviction relief. See Middleton, 2015 ME 164, ¶ 11, 129 A.3d 962. This is
one of those cases where the petitioner has done just that. The record
establishes that Ford was prejudiced in regards to his convictions on all counts
by the deficient performance of his trial counsel, and but for the deprivation of
Ford’s right to testify, there is a reasonable probability that “the result of the
proceeding would have been different.”2 Strickland, 466 U.S. at 694.
III. CONCLUSION
[¶21] The court erred when it denied Ford’s petition for post-conviction
relief as to his felony convictions given its determination that Ford had proved
ineffective assistance of counsel for the misdemeanor charge. Ford’s trial
counsel deprived him of his constitutional right to testify, constituting deficient
performance outside an objective standard of reasonableness. As a result of
2 Ford also argues that a deprivation of the right to testify constitutes a structural error that
entitles him to an automatic reversal of his convictions without any showing of actual prejudice. See
McCoy v. Louisiana, --- U.S. ---, 138 S. Ct. 1500, 1511 (2018) (stating that the deprivation of a
defendant’s right to self-representation is a structural error); McKaskle v. Wiggins, 465 U.S. 168, 177
n.8 (1984) (same). The State contends that, even if a deprivation of the right to testify is a structural
error, because Ford raises this issue in the context of a claim of ineffective assistance of counsel, he
is still required to show prejudice. See Weaver v. Massachusetts, --- U.S. ---, 137 S. Ct. 1899, 1908-12
(2017) (holding that a deprivation of the right to a public trial, even though a structural error, does
not entitle a defendant to automatic reversal when brought as a claim of ineffective assistance of
counsel). Because we conclude that Ford was prejudiced by the deprivation of his right to testify, we
do not reach the question of whether such a deprivation constitutes structural error or if he would
be entitled to a judgment vacating the underlying criminal judgment without a showing of actual
prejudice. See Rangeley Crossroads Coalition v. Land Use Regulation Comm’n, 2008 ME 115, ¶ 10, 955
A.2d 223 (“We avoid expressing opinions on constitutional law whenever a non-constitutional
resolution of the issue[] renders a constitutional ruling unnecessary.”).
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counsel’s deficient performance, Ford was prejudiced in his attempt to defend
against all charges brought against him, entitling him to post-conviction relief
from judgments of conviction on all counts.
The entry is:
Judgment vacated. Remanded to the Superior
Court for entry of a judgment granting the
petition for post-conviction review and vacating
all remaining convictions in the underlying
criminal judgment.
David Bobrow, Esq. (orally), Bedard & Bobrow, PC, Eliot, for appellant Bartolo P.
Ford
Andrew S. Robinson, District Attorney, Patricia Reynolds Regan, Asst. Dist. Atty.,
and Patricia A. Mador, Asst. Dist. Atty. (orally), Office of the District Attorney,
Lewiston, for appellee State of Maine
Androscoggin County Superior Court docket number CR-2017-1057
FOR CLERK REFERENCE ONLY