Benjamin H. Hodgdon II v. State of Maine

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 22
Docket: Han-20-119
Argued: February 9, 2021
Decided: April 15, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

BENJAMIN H. HODGDON II

v.

STATE OF MAINE

HORTON, J.

[¶1] Benjamin H. Hodgdon II appeals from a judgment entered by the

Superior Court (Hancock County, R. Murray, J.) denying, in part, his petition for

post-conviction review of his conviction on several sexual assault charges.

Hodgdon contends that the court should have granted his petition in all

respects because his attorney furnished ineffective assistance during his trial.

Because we agree that Hodgdon was deprived of his right to the effective

assistance of trial counsel, we vacate the judgment and remand for entry of a

judgment granting his petition in full.
2

I. BACKGROUND

A. Trial and Direct Appeal Proceedings

[¶2] In April 2014, Hodgdon was charged in an eight-count indictment

with four counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B)

(Supp. 2000) (Counts 1, 3, 4, and 5); two counts of unlawful sexual contact

(Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 2000) (Counts 2 and 6); and two

counts of sexual abuse of a minor (Class C), 17-A M.R.S.A. § 254(1)(A), (3)(A)

(Supp. 2000) (Counts 7 and 8).1 All of the charges alleged criminal acts

occurring in 1999 and 2000. The charges of gross sexual assault and unlawful

sexual contact (Counts 1 through 6) alleged acts committed before the alleged

victim turned fourteen years old.

[¶3] The trial court (Hancock County, R. Murray, J.) held a three-day jury

trial in March 2016. Before any evidence was presented, Hodgdon moved in

limine to exclude a recording of a conversation between Hodgdon and the

alleged victim that the alleged victim had created on her cell phone and

provided to the police. The court ruled that the recording itself and “any

1 Sections 253(1)(B) and 254(1)(A) of Title 17-A have since been amended, see P.L. 2001, ch. 383,

§§ 21, 156 (effective Jan. 31, 2003); P.L. 2003, ch. 711, § B-2 (effective July 30, 2004), and section 255
has been repealed and replaced, see P.L. 2001, ch. 383, §§ 22-23, 156 (effective Jan. 31, 2003). None
of these changes affects the analysis here.
 3

reference to the fact that a recording was made or attempted” would be

inadmissible at trial.

[¶4] The alleged victim was the State’s first witness. She testified that

during the three years that she was in middle school, Hodgdon was her teacher,

cross-country coach, and tutor, and that he also employed her (as a babysitter

and landscaper) outside of school. She testified that Hodgdon subjected her to

sexual acts at least thirty to forty times before she graduated from middle

school, including at his house, before and after school in his classroom, at

landscaping job sites, in his vehicle in the school parking lot after school, and at

his parents’ house.

[¶5] Hodgdon’s trial counsel began his cross-examination by asking the

alleged victim about a police detective’s interview of her in 2013 and seeking

to introduce in evidence a transcript and audio recording of that interview. The

State objected to the admission of the entire transcript and recording. Trial

counsel stated that he wanted to highlight inconsistencies between the alleged

victim’s statements to the detective in that interview and her trial testimony

and argued that it was “imperative” that the jury read and hear the entire police

interview. The court suggested waiting to see how the cross-examination

developed before deciding whether the exhibits would be admitted, and trial
4

counsel agreed with that approach. Trial counsel then questioned the alleged

victim, referring to various elements of the interview in an attempt to suggest

that her trial testimony differed from what she had initially told the police. He

then again sought admission of the entire, unredacted transcript and recording.

The State did not object, and the court admitted the exhibits.

[¶6] Several other witnesses testified during the trial, including a “first

complaint” witness, see, e.g., State v. Fahnley, 2015 ME 82, ¶¶ 15-26,

119 A.3d 727, Hodgdon, and several school employees and community

members. The State did not present any physical or corroborative eyewitness

evidence; its case-in-chief was entirely based on the alleged victim’s testimony

that Hodgdon had assaulted her. Hodgdon’s counsel did not request a “specific

unanimity” jury instruction, see, e.g., State v. Hanscom, 2016 ME 184,

¶¶ 11-14, 16, 152 A.3d 632, and the court did not provide one. The jury found

Hodgdon guilty of one count of gross sexual assault (Count 5), one count of

unlawful sexual contact (Count 6), and one count of sexual abuse of a minor

(Count 7). The court later sentenced Hodgdon on the count of gross sexual

assault to eleven years in prison, with all but three and one-half years
 5

suspended, and six years of probation.2 Hodgdon appealed, and we affirmed

the judgment of conviction.3 See State v. Hodgdon, 2017 ME 122, ¶¶ 1, 26,

164 A.3d 959.

B. Post-Conviction Review Proceedings

[¶7] Hodgdon then filed a petition for post-conviction review in the

Superior Court (Hancock County). See 15 M.R.S. §§ 2123, 2129 (2021). He

argued, among other things, that he had been deprived of his right to the

effective assistance of counsel based on (1) trial counsel’s introduction in

evidence of the recording and transcript of the entirety of the alleged victim’s

police interview and (2) trial counsel’s failure to request jury instructions

concerning specific unanimity. The post-conviction court (R. Murray, J.) held an

evidentiary hearing. Trial counsel was unavailable to testify because he had

died before the hearing took place. The evidence admitted included the

2 On the counts of unlawful sexual contact and sexual abuse of a minor (Counts 6 and 7), which

are not at issue in this appeal, see infra ¶ 8, the court imposed concurrent three-year terms of
imprisonment.

In his direct appeal, Hodgdon argued that (1) the court did not sufficiently instruct the jury that
3

it needed to find that the alleged victim was less than fourteen years old to find him guilty of
Counts 5 and 6, (2) the breadth of time encompassed by the indictment exposed him to double
jeopardy, and (3) there was insufficient evidence for the jury to find that he had assaulted the alleged
victim before she turned fourteen. State v. Hodgdon, 2017 ME 122, ¶ 10, 164 A.3d 959. He also argued
that the trial court (Mallonee, J.) should have granted his pretrial motion to dismiss the indictment
based on the State’s failure to preserve the alleged victim’s cell phone. Id. ¶ 10 n.5.
6

relevant trial transcripts and exhibits;4 trial counsel’s entire file, which

contained copies of communications from trial counsel to Hodgdon; and the

testimony of Hodgdon’s expert witness, who opined that trial counsel’s conduct

constituted ineffective assistance of counsel.

[¶8] In March 2020, the court granted Hodgdon’s petition as to the

convictions for unlawful sexual contact and sexual abuse of a minor (Counts 6

and 7), determining that trial counsel’s failure to request specific unanimity

instructions concerning those charges amounted to ineffective assistance of

counsel. The court therefore vacated Hodgdon’s convictions on those counts,

such that only the conviction for gross sexual assault (Count 5) remained. The

court found that a specific unanimity instruction was unnecessary for that

charge because the trial record contained evidence of only one incident that

could have formed the basis for the jury’s finding of guilt.

[¶9] The court also determined that trial counsel’s decision to introduce

the transcript and recording of the alleged victim’s police interview was part of

a trial strategy that “fell within the wide range of reasonable professional

assistance.” (Quotation marks omitted.) Concluding that none of Hodgdon’s

The post-conviction record included the transcript of the alleged victim’s police interview that
4

had been admitted during the trial, but not the recording. With the agreement of the parties, we
ordered that the recording be added to the record on appeal.
 7

other arguments merited relief, the court denied Hodgdon’s petition as to the

conviction for gross sexual assault (Count 5).

[¶10] One month later, in April 2020, we decided Watson v. State, in

which we concluded that trial counsel’s introduction of a recording of an

alleged crime victim’s interview with police constituted ineffective assistance

of counsel. 2020 ME 51, ¶¶ 19-39, 230 A.3d 6. Based on Watson, Hodgdon

asked the post-conviction court to reconsider its decision in this case. The court

denied his motion. We then granted Hodgdon’s request for a certificate of

probable cause to proceed with this appeal. See 15 M.R.S. § 2131(1) (2021);

M.R. App. P. 19(a)(2)(F), (f).

II. DISCUSSION

[¶11] “[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 U.S. Const. amend. VI; Me. Const. art. I, § 6. “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 reasonableness’

and (2) that the ‘errors of counsel . . . actually had an adverse effect on the

defense.’” Ford v. State, 2019 ME 47, ¶ 11, 205 A.3d 896 (quoting Strickland v.

Washington, 466 U.S. 668, 693 (1984)).
8

[¶12] In determining whether the petitioner has met his burden on the

performance prong of this test—that counsel’s representation was deficient—

a court affords trial counsel’s strategic decisions significant deference. See, e.g.,

Middleton v. State, 2015 ME 164, ¶ 13, 129 A.3d 962. But notwithstanding “the

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy,” id. (quotation marks omitted), “[a]

determination that defense counsel’s choices amount to trial strategy does not

automatically insulate them from review,” Watson, 2020 ME 51, ¶ 20,

230 A.3d 6 (quotation marks omitted). Ultimately, “counsel’s representation of

a defendant falls below the objective standard of reasonableness if it falls below

what might be expected from an ordinary fallible attorney.” Philbrook v. State,

2017 ME 162, ¶ 7, 167 A.3d 1266 (quotation marks omitted). To establish

prejudice—that counsel’s errors had an adverse effect on the defense—a

petitioner “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; see Watson,

2020 ME 51, ¶ 29, 230 A.3d 6.
 9

[¶13] We “review a 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. “[B]oth prongs of the Strickland analysis often present mixed

questions of law and fact . . . .” Id. We “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.” Id. ¶ 13. “Because a petitioner bears the burden

of proof at the post-conviction hearing, we will not disturb the court’s

determination that the petitioner failed to satisfy his burden unless the

evidence compelled the court to find to the contrary.” Philbrook, 2017 ME 162,

¶ 9, 167 A.3d 1266 (alteration omitted) (quotation marks omitted). Where the

court has stated findings and the petitioner has not moved for further findings,

“we will infer that the court found all the facts necessary to support its

judgment if those inferred findings are supportable by evidence in the record.”

Id. (quotation marks omitted).

[¶14] We focus here on trial counsel’s introduction of the transcript and

recording of the alleged victim’s police interview.5 We addressed a similar

5 We note, for the benefit of the court and the parties, our conclusion that the post-conviction
court erred when it found that Hodgdon was not entitled to a specific unanimity instruction
concerning Count 5. Resolving the issue involves examining the totality of the trial evidence—not
just the evidence on which the State or the defendant seemed most focused—in the context of the
elements of the charge at issue. See State v. Reynolds, 2018 ME 124, ¶ 15, 193 A.3d 168; State v.
Hanscom, 2016 ME 184, ¶ 11, 152 A.3d 632; State v. Fortune, 2011 ME 125, ¶ 31, 34 A.3d 1115. A
specific unanimity instruction explains to jurors the requirement of “unanimous agreement among
10

issue recently in Watson, 2020 ME 51, ¶¶ 19-39, 230 A.3d 6. There, just before

resting the defense case, and without providing any context, trial counsel

played a video recording of the ten-year-old alleged victim’s police interview

and introduced a transcript of the interview in evidence for the jury. Id.

¶¶ 1, 7-8. The description of the sexual abuse that the alleged victim gave

during the police interview was consistent with her trial testimony, but she

made an additional comment to the detective that could have been interpreted

as suggesting a motive to fabricate the allegations in order to manipulate a

the[m] that a single incident of [the alleged crime] occurred” to support a finding of guilt on a given
count. Hanscom, 2016 ME 184, ¶ 11, 152 A.3d 632; see Reynolds, 2018 ME 124, ¶ 15, 193 A.3d 168
(“[W]hen separate but similar incidents are the evidence supporting a single charge, the jury must
unanimously find that one specific incident occurred.” (quotation marks omitted)). “On request, the
jury should be instructed on this point, if the evidence offered in support of one charge includes more
than one incident of the charged offense.” Fortune, 2011 ME 125, ¶ 31, 34 A.3d 1115.

Here, a guilty verdict on Count 5 required proof that Hodgdon had engaged in a sexual act with a
person who was under fourteen years old and not his spouse. See 17-A M.R.S.A. § 253(1)(B)
(Supp. 2000). The court found that the record contained evidence of only one incident that met those
elements: “the incident described as having occurred at [Hodgdon’s home] while the victim was
purportedly there babysitting [Hodgdon’s] children.” Although the evidence describing that incident
was sufficient to support a finding of guilt on Count 5, Hodgdon, 2017 ME 122, ¶¶ 21-26,
164 A.3d 959, the trial record contained evidence of other instances that would have been sufficient
as well.

For example, the jury heard evidence that (1) Hodgdon coached cross-country during the fall of
the alleged victim’s eighth-grade year; (2) Hodgdon “had sex” with the alleged victim in his vehicle
after cross-country practice; and (3) the alleged victim turned fourteen on March 16, 2000, during
the spring of her eighth-grade year. From this evidence, the jury could rationally infer that Hodgdon
subjected the alleged victim to a sexual act in his vehicle after cross-country practice during the fall
of 1999—before the alleged victim turned fourteen. Hodgdon was, therefore, entitled to a specific
unanimity jury instruction concerning Count 5. See Fortune, 2011 ME 125, ¶ 31, 34 A.3d 1115. Given
our conclusion in this appeal, however, we need not reach the issue of whether trial counsel’s failure
to request the instruction constituted ineffective assistance of counsel.
 11

custody dispute.6 Id. ¶¶ 8, 12. Trial counsel’s goal was to suggest that the

State’s investigation was incomplete or inadequate as part of an overall

“strategy of undermining the victim’s credibility by showing that she fabricated

the allegations.” Id. ¶ 23. The question, therefore, was “whether trial counsel’s

decision to play the entire video interview for the purpose of showing the

victim’s motive to fabricate the allegations and undermine her credibility was

a reasonable trial strategy.” Id.

[¶15] We concluded that trial counsel’s decision was both unnecessary

and unreasonable: “It may have been a sound strategy to argue that the victim

had a motive to fabricate because of the custody issue and that the detective’s

interview was too short, but these issues could have been raised and argued

without playing the entire video interview.” Id. ¶ 24. In the context of a “he

said/she said” case, playing the recorded interview for the jury simply served

to bolster the alleged victim’s credibility by providing the jury with her earlier,

consistent description of the assaults. Id. ¶ 25.

[¶16] Here, in its initial order denying Hodgdon’s petition, the

post-conviction court stated that trial counsel’s strategy was to “lay everything

on the table with the expectation that the jury would find [Hodgdon], and

6 The alleged victim could “be seen and heard on the video stating, ‘So, I won’t get taken away
from my grandparents?’” after disclosing the assault. Watson v. State, 2020 ME 51, ¶ 8, 230 A.3d 6.
12

[Hodgdon’s] version of events, more credible than the victim and her version.”

The court relied on trial counsel’s assertions, made during closing argument

and in a post-trial letter to Hodgdon, that the alleged victim’s statements during

the police interview were internally inconsistent and inconsistent with her trial

testimony and that her allegations were patently incredible. Addressing

Hodgdon’s argument that trial counsel could have accomplished his goal of

highlighting inconsistencies without introducing the exhibits, the court stated:

“This is certainly true, and if trial counsel’s sole purpose was limited to

presenting one or more of the victim’s inconsistent statements, introduction of

the entire transcript or recording of the victim’s earlier statement would be

questionable.” The court reasoned, however, that trial counsel’s actions were

“meant to accomplish more, as articulated in his closing argument [to the trial

jury] as set forth above.”

[¶17] In its order denying reconsideration, the court stated that trial

counsel’s “purpose for introducing the victim’s interview evidence in this case

was to establish the inconsistency between the interview and her trial

testimony. This rationale was specifically articulated by trial counsel in his

closing argument to the jury when he noted that the victim’s interview

statement . . . (1) [was] internally inconsistent; (2) was inconsistent with the
 13

testimony the victim presented at trial; and (3) . . . presented a strikingly

incredible story, and thereby challeng[ed] the reliability of the victim’s

testimony.”7 (Emphasis omitted).

[¶18] The finding that trial counsel’s goal was “to establish the

inconsistency between the [alleged victim’s] interview and her trial testimony”

is supported by the evidence in the post-conviction record. The question, then,

is whether introducing the entire transcript and recording in evidence in order

to accomplish that goal was a reasonable trial strategy. See id. ¶ 23. The record

compels a determination that it was not.

[¶19] The alleged victim’s description of the assaults to the detective

was, overall, consistent with her trial testimony. She told the detective that

7 Trial counsel’s statement during his closing argument to the jury, as quoted by the
post-conviction court, was as follows:

As you will know when you read this document, it is internally inconsistent. And I
will leave that out there. You will determine that for yourself. . . . The second thing
that is striking is that this 54 page document was not the allegation that we heard two
days ago on the stand. . . . The third thing that is striking is that the story that is laid
out is just incredible, okay? . . . Another indicia of reliability is, is what’s being said
patently provable to be false by other evidence. You can read it for yourself.

In the post-trial letter to Hodgdon, trial counsel wrote, similarly,

Essentially, our fundamental trial strategy was to tie [the alleged victim] to her
August 1, 2013 statement (which, as discussed, I actually provided to the jury, albeit
notwithstanding some risk) and then to challenge that statement as internally
inconsistent, as subject to subsequent elaboration and expansion (and therefore
inconsistent), as essentially incredible (especially with regard to allegations of sexual
contact at the school—in the modular classroom, in interior classrooms and in your
truck in the school parking lot)—and as motivated for fabrication.
14

Hodgdon had cultivated a relationship with her while she was in middle school

that progressed eventually to physical contact and sexual acts. She talked about

being eleven, twelve, and thirteen years old, and in middle school, when the

sexual acts took place. She said that Hodgdon subjected her to sexual acts

“anytime that he could get [her] all by [her]self with him,” that the sexual acts

occurred “a lot of times in school before school would start,” that they occurred

“a handful of times” at the school, that they occurred “as much as possible” until

she graduated from middle school, and that they were “pretty common” for two

to three years after the first few times. This description tracked the alleged

victim’s testimony at trial, tending to support her credibility rather than

undermine it.

[¶20] Trial counsel did attempt to highlight inconsistencies during his

cross-examination of the alleged victim.8 But even assuming that the interview

provided fodder for trial counsel to impeach the alleged victim’s credibility

8 The inconsistencies that trial counsel focused on were, in large part, rebutted by subsequent

testimony given by the alleged victim and the detective in ways that would have been unsurprising
to trial counsel given the transcript of the interview. For example, trial counsel focused on the
difference between the alleged victim’s statement during the interview that Hodgdon subjected her
to sexual acts “a handful of times” and her trial testimony that he had done so at least thirty to forty
times. The alleged victim later testified that, as was evident from the transcript and recording of her
interview, her use of the phrase “a handful of times” was in response to a question about the number
of times that Hodgdon had subjected her to sexual acts at school. She had also told the detective
during the interview that the assaults happened any time that Hodgdon could get her alone, “a lot of
times,” “as much as possible,” and “pretty common[ly].”
 15

through cross-examination, the record provides no possible basis for trial

counsel to conclude that it was also necessary for the jury to read and listen to

the entire interview.9 Indeed, trial counsel himself acknowledged that more

than half of the transcript contained statements that were consistent with the

alleged victim’s trial testimony.

[¶21] Trial counsel’s decision is particularly perplexing because the

exhibits contained an array of additional, otherwise inadmissible evidence that

could only have been prejudicial to Hodgdon’s defense. For example, during

the interview with the detective, the alleged victim referred—multiple times—

to “something” that happened with “other young females” or “another

female . . . before [the alleged victim].” She stated that the school knew about

“something that happened with another girl,” “asked [Hodgdon] to get help,”

and “sent him away to get help somewhere.” She noted that one of these other

victims, whom she identified by name, would have been in eighth grade when

“something” happened. She stated that Hodgdon was ultimately fired from his

9 One of the primary grounds provided to the court by trial counsel was to suggest that the alleged
victim had mentioned Hodgdon’s giving her drugs for the first time at trial. On redirect, however,
after having her memory refreshed with a report describing a different interview with the detective,
the alleged victim testified that she had mentioned the drugs to the detective before the trial. The
detective also testified that the alleged victim’s trial testimony had not included any new information.
In any case, introducing the unredacted exhibits to show that the alleged victim failed to discuss
drugs with the detective in a particular conversation was entirely unjustified given the likely impact
of the otherwise inadmissible information they contained. See infra ¶¶ 21-23.
16

teaching position after he engaged in a public display of affection with a

different former student, and that he admitted failing to “see the boundaries

with” that former student. She referred to Hodgdon having a “mental

breakdown” after his separation from his first ex-wife and to his having

“tremors” and taking “antidepressants and medications.” She also referred,

several times, to the recording that she “got of” Hodgdon on her cell phone; the

exhibits therefore included evidence—a “reference to the fact that a recording

was made or attempted”—that the court had specifically excluded upon

Hodgdon’s motion in limine.

[¶22] As in Watson, the decision to introduce the entire transcript and

recording in this case was not only unnecessary, it was unreasonable. See id.

¶¶ 24-25. It placed the alleged victim’s numerous prior consistent statements

in the hands of the jurors during deliberations, and the State capitalized on the

opportunity to focus on those consistencies. It also led to the introduction of

otherwise inadmissible evidence—to the effect that Hodgdon had engaged in a

pattern of sexual predation upon students that resulted in his losing his job—

that was extremely damaging to the defense. See State v. Triolo,

No. 2012AP2806-CR, 2013 Wisc. App. LEXIS 971, at *2, *10, *13 (Wis. Ct. App.

Nov. 19, 2013) (concluding that trial counsel’s performance was deficient
 17

where he failed to object to the admission of a recording of a sexual assault

victim’s police interview that included a reference to a separate assault against

another person). In short, there was nothing to be gained—and much to be

lost—by submitting the exhibits to the jury. Although a strategy of discrediting

the alleged victim by highlighting inconsistencies that arose based on the

interview may have been reasonable, the record compels a determination that

the method by which defense counsel implemented that strategy fell “below

what might be expected from an ordinary fallible attorney,” Philbrook,

2017 ME 162, ¶ 7, 167 A.3d 1266 (quotation marks omitted).

[¶23] We also conclude that trial counsel’s deficient performance caused

actual prejudice to Hodgdon as a matter of law. See Watson, 2020 ME 51,

¶¶ 29, 31, 230 A.3d 6. As in Watson, the State’s case hinged entirely on the

alleged victim’s testimony—there were no witnesses to the alleged abuse, and

there was no corroborating physical evidence. See id. ¶¶ 33-36. In this “he

said/she said” case, the alleged victim’s credibility was “the focus of the defense

and a central issue” at trial,10 and counsel’s choice served to bolster her

10 Trial counsel urged the jury to view the case in that way, stating during his opening statement
that it was “the most barest and unadorned version of a he said, she said case that you will ever see,”
and, during his closing argument, that “[i]t is unavoidably true here, ladies and gentlemen, that both
people cannot be telling the truth. All right? Someone is lying. Both stories cannot be true. . . . [N]o
one was there to know who’s telling the truth and who’s lying.”
18

credibility. Id. ¶ 36 (quotation marks omitted). Given that trial counsel’s

introduction of the entire, unredacted transcript and recording also

gratuitously exposed the jury to a panoply of severely prejudicial evidence, we

must conclude that the error “undermine[s] confidence in the outcome,”

Strickland, 466 U.S. at 694.

[¶24] We decline, however, to announce a per se rule that a defense

attorney’s introduction of the entirety of an alleged victim’s pretrial statement

will, in all cases, constitute deficient representation. Reviewing courts must

continue to evaluate each case based on the particular circumstances presented

by the trial record, and we cannot conclude that there are no conceivable

circumstances in which such a decision could constitute a reasonable trial

strategy. See, e.g., id. at 690 (“[A] court deciding an actual ineffectiveness claim

must judge the reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s conduct.”). Before making

that choice, however, trial counsel should always consider alternatives—

including cross-examining the witness on selected portions of the prior

statement; seeking to admit redacted portions in evidence if necessary; and,

where a legitimate goal is to prove that certain topics were not addressed in the
 19

prior statement, asking a witness who has reviewed the entire transcript or

recording to confirm that fact.

III. CONCLUSION

[¶25] The record compels a determination that, in the context of this

case, trial counsel’s decision reflected representation that fell “below what

might be expected from an ordinary fallible attorney,” Philbrook, 2017 ME 162,

¶ 7, 167 A.3d 1266. Because there is a reasonable probability that counsel’s

error altered the result at trial, see Strickland, 466 U.S. at 694, Hodgdon is

entitled to post-conviction relief from the sole remaining portion of the

judgment of conviction.

The entry is:

Judgment vacated. Remanded for entry of a
judgment granting Hodgdon’s petition for
post-conviction review and vacating the
remaining conviction (Count 5) of the
underlying criminal judgment.

Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant
Benjamin H. Hodgdon II

Matthew J. Foster, District Attorney, and Eden S. Stuart, Asst. Dist. Atty. (orally),
Prosecutorial District No. VII, Ellsworth, for appellee State of Maine

Hancock County Unified Criminal Docket docket number CR-2017-1204
FOR CLERK REFERENCE ONLY