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Laferriere v. State
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Decision:	1997 ME 169
Docket:	Aro-96-474
Argued:	March 4, 1997
Decided:	July 23, 1997





	[¶1]  Albenie Laferriere appeals from the judgment entered in the
Superior Court (Aroostook County, Marsano, J.) denying his petition for
post-conviction review of his murder conviction following a guilty plea.  On
appeal, he contends that the court erred by rejecting his contention that he
was denied the effective assistance of counsel.  We disagree and affirm the
	[¶2]  On December 23, 1992, Albenie Laferriere killed his wife Audrey
by shooting her three times, twice in the chest and once in the back of the
head, in the bedroom of Laferriere's apartment in Van Buren.  After the
shooting, Laferriere called attorney Mark Freme, told him what had
happened, and asked him to come to Laferriere's apartment.  Laferriere also
called Norman Burby, a man with whom Audrey had recently been staying,
and told him of the shooting.  Both Freme and Burby telephoned police and
informed them of the shooting.  Freme rode to Laferriere's apartment with a
State Police trooper, and the two arrived to find Van Buren police already on
the scene.  Laferriere, who is confined to a wheelchair, was still in his
apartment when police arrived.  He said that he had shot Audrey and turned
the weapon over to police.
	[¶3]  Laferriere was indicted on one count of murder in violation of
17-A M.R.S.A. § 201 (1983).   In February 1993 he entered a plea of guilty to
the charge and was sentenced to 55 years in prison.  He filed a petition for
post-conviction review in 1995, and the court denied the petition.  We
granted a certificate of probable cause pursuant to M.R. Crim. P. 76.
	[¶4]  Laferriere claims that he was denied the effective assistance of
counsel in the presentation of his guilty plea in violation of the Sixth
Amendment to the United States Constitution.  He claims such
ineffectiveness from the commencement of the police investigation of the
shooting until the conclusion of the plea proceeding.  Specifically, Laferriere
alleges the following examples of his attorney's ineffectiveness:  (1) after
Laferriere called Freme to tell him of the shooting, Freme called State
Police and informed them that Laferriere had shot and killed his wife; (2) 
after police arrived at Laferriere's apartment, Freme made no effort to limit
their access to Laferriere.  When Laferriere suffered chest pains and was
taken to the hospital, police interrogated Laferriere while he was in his
hospital bed without objection from Freme; (3) Freme agreed to a 55 year
joint sentence recommendation and advised Laferriere that he would serve
his sentence in a state nursing home rather than prison; (4) Freme failed to
explain the nature of the charges against him.  As a result he did not
understand the charge to which he was pleading guilty; and (5) Freme had a
conflict of interest in his representation because of the possibility that
Freme would have been called as a witness for the State if Laferriere had
proceeded to trial.
III. Demonstrating Prejudice
	[¶5]  The right of an accused to be represented by counsel "is a
fundamental component of our criminal justice system" guaranteed by the
Sixth Amendment of the United States Constitution.  U.S. v. Cronic, 466 U.S.
648, 653 (1984).  "The right to counsel plays a crucial role in the
adversarial system embodied in the Sixth Amendment, since access to
counsel's skill and knowledge is necessary to accord defendants the 'ample
opportunity to meet the case of the prosecution' to which they are entitled." 
Strickland v. Washington, 466 U.S. 668, 685 (1984) (quoting Adams v. U.S.
ex rel. McCann, 317 U.S. 269, 275 (1942)).  Because of the fundamental role
that defense counsel play in ensuring the fairness of the criminal justice
system, "the right to counsel is the right to the effective assistance of
counsel."  McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).  See
Herring v. New York, 422 U.S. 853, 862 (1975) ("The very premise of our
adversary system of criminal justice is that partisan advocacy on both sides
of a case will best promote the ultimate objective that the guilty be convicted
and the innocent go free.").  The absence of effective counsel undermines
faith in the proper functioning of the adversarial process.  "Unless the
accused receives the effective assistance of counsel, 'a serious risk of
injustice infects the trial itself.'"  Cronic, 466 U.S. at 656 (quoting Cuyler v.
Sullivan, 446 U.S. 335, 343 (1980)).
	[¶6]  Because Laferriere bore the burden of proof at the post-
conviction hearing, we will not disturb the court's determination that he
failed to satisfy his burden unless "the evidence compelled the court to find
to the contrary."  State v. Jordan, 599 A.2d 74, 76 (Me. 1991).  On post
conviction review, we have consistently applied a two-part test to the
conduct of trial counsel to determine if a new trial is warranted.
The inquiry is:  '(1) whether counsel's performance falls
measurably below the performance that might be expected of an
ordinary, fallible attorney; and, if so, (2) whether counsel's
substandard performance likely deprived the defendant of an
otherwise available substantial ground of defense.'

Lagasse v. State, 655 A.2d 328, 329 (Me. 1995) (quoting State v. Jurek, 594
A.2d 553, 555 (Me. 1991)).  We have said that our two part test is "virtually
identical" to the test formulated by the Supreme Court of the United States
in Strickland v. Washington.{1} Kimball v. State, 490 A.2d 653, 656 (Me.
	[¶7]  This case marks the first occasion we have had to apply the
Strickland test to an ineffective assistance of counsel claim arising out of a
plea proceeding.  The Supreme Court has already done so.  In Hill v.
Lockhart, 474 U.S. 52 (1985), petitioner Hill challenged his guilty plea as
involuntary because of the ineffective assistance of counsel.  Hill claimed that
his lawyer advised him that if he pleaded guilty he would be eligible for
parole after serving only a third of his sentence, when in actuality he would
not have been eligible until he had served half of his sentence.  474 U.S. at
55.  The Court held that "the same two-part standard" of Strickland is
"applicable to ineffective assistance claims arising out of the plea process." 
474 U.S. at 57.  The Court further held that while the first prong of the
Strickland test remains the same in a plea proceeding,

[t]he second, or 'prejudice,' requirement, on the other hand,
focuses on whether counsel's constitutionally ineffective
performance affected the outcome of the plea process.  In other
words, in order to satisfy the 'prejudice' requirement, the
defendant must show that there is a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.

474 U.S. at 59.
The Court rejected Hill's claim because he failed to satisfy the "prejudice"

Petitioner did not allege in his habeas petition that, had counsel
correctly informed him about his parole eligibility date, he would
have pleaded not guilty and insisted on going to trial.  He alleged
no special circumstances that might support the conclusion that
he placed particular emphasis on his parole eligibility in
deciding whether or not to plead guilty.  

474 U.S. at 60.
	[¶8]  Retaining the "prejudice" requirement for a defendant who
seeks to challenge the validity of a guilty plea through post-conviction
proceedings maintains the burden on the defendant to show that the alleged
error by counsel impugns the validity of the conviction.{2}  Hill, 474 U.S. at
58.  "The longstanding test for determining the validity of a guilty plea is
'whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.'"  Id. at 56 (quoting
North Carolina v. Alford, 400 U.S. 25, 31 (1970)).  Setting aside an
otherwise valid guilty plea because of an error by counsel that did not affect
the knowing and voluntary nature of the defendant's plea would be a windfall
to the defendant:  "An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment."  Strickland, 466 U.S. at 691. 
Laferriere cannot prevail unless he demonstrates that he would not have
pleaded guilty if his counsel had not made the errors he is alleged to have
made.   "'Prejudice' is a reasonable probability that the defendant would
have insisted on going to trial had he not received the ineffective assistance,
and a 'reasonable probability' is 'a probability sufficient to undermine
confidence in the outcome.'"  Ostrander v. Green, 46 F.3d 347, 355 (4th
Cir. 1995) (quoting Strickland, 466 U.S. at 694), overruled on other grounds
by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996).  The reliability of the
plea proceeding is not impugned if the decision to plead guilty was the
knowing and voluntary choice of a guilty person.
	[¶9]  Laferriere faces a difficult task in convincing us that his plea was
not the voluntary and knowing choice of a guilty person, given the
meticulous questioning by the court to ensure that Laferriere understood the
consequences of his plea.  Huff v. State, 711 S.W.2d 801, 803 (Ark. 1986)
("A defendant whose conviction is based on a plea of guilty ordinarily will
have difficulty in proving prejudice since his plea rests on the admission in
court that he did the act with which he is charged."); Praylow v. Martin, 761
F.2d 179, 183 (4th Cir. 1985), cert. denied, 474 U.S. 1009 ("The transcript
of the plea proceeding reflects that Praylow admitted his guilt to the trial
judge and further stated he was pleading freely and voluntarily. . . .  The
record supports the findings . . . that Praylow pleaded guilty . . . knowingly
and voluntarily.").  The record in this case reveals the care exercised by the
court at the Rule 11 hearing to ensure that Laferriere's plea was voluntary. 
Indeed, the court directed several questions to Laferriere about the
voluntariness of his plea.  Littlefield v. State, 429 A.2d 1006, 1008 (Me.
1981).  "A plea is valid if it is made voluntarily with knowledge of the
elements of the crime, the penalty that might be imposed and the
constitutional rights relinquished by foregoing trial."  State v. Comer, 584
A.2d 638, 640 (Me. 1990).  
	[¶10]  Despite the difficulties of proof posed by the prejudice
requirement, Laferriere did not testify at the hearing on his petition for
post-conviction review, and thus he did not explain why he chose to plead
guilty.  Instead, he presented the testimony of a Maine State Police detective
who went to the scene of the crime and an attorney who focused on the
deficiencies in the performance of Laferriere's attorney over the course of
the murder investigation.  The State presented only the testimony of Freme. 
None of this testimony offered any insight into why Laferriere decided to
plead guilty, or how a different performance by counsel would have changed
that decision.   Laferriere has thus failed to demonstrate that he was
prejudiced by the alleged errors of counsel.
Presumption of Prejudice
	[¶11]  Aware of these deficiencies in the record, Laferriere contends
that he can satisfy the prejudice requirement of Strickland because he is
entitled to a presumption of prejudice arising out of his attorney's
ineffectiveness.  The Supreme Court in U.S. v. Cronic, 466 U.S. 648, 658
(1984), decided the same day as Strickland v. Washington, stated that
generally "the burden rests on the accused to demonstrate a constitutional
violation" arising out of errors committed by counsel.  The Court stated,
however, that in rare instances prejudice might be presumed "without
inquiry into counsel's actual performance at trial."{3}  466 U.S. at 662.  "The
Court has uniformly found constitutional error without any showing of
prejudice when counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding."  Id. at 659
n.25.  See also Davis v. Alaska, 415 U.S. 308 (1974) (court denied defendant
the right to cross examine witness); Powell v. Alabama, 287 U.S. 45 (1932)
(court appointed one out of state attorney to represent six defendants on the
first day of trial in a highly publicized capital offense).  If "the defendant was
constructively denied the assistance of counsel, then the conviction must be
overturned because prejudice is presumed."  Woodard v. Collins, 898 F.2d
1027, 1028 (5th Cir. 1990).  See Geders v. U.S., 425 U.S. 80 (1976) (bar on
attorney consultation with client during overnight recess); Herring v. New
York, 422 U.S. 853 (1975) (bar on summation); Brooks v. Tennessee, 406
U.S. 605 (1972) (defendant required to be first defense witness); White v.
Maryland, 373 U.S. 59 (1963) (per curiam) (denial of counsel at preliminary
hearing); Hamilton v. Alabama, 368 U.S. 52 (1961) (denial of counsel at
arraignment); Ferguson v. Georgia, 365 U.S. 570 (1961) (bar on direct
examination of defendant).{4}  In addition to actions by the court that pose
impediments to the effective assistance of counsel, counsel can also deprive
the defendant of effective assistance by representing the defendant while
having a conflict of interest.  Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).
	[¶12]  At the core of the prejudice analysis, whether the issue is
demonstrated or presumptive prejudice, is a concern for the reliability of
the trial or plea proceeding "as having produced a just result."  Strickland,
466 U.S. at 686.  A just result in a criminal trial can be the conviction of a
guilty party.  The just result of a plea proceeding is the knowing and
voluntary entry of a guilty plea by a guilty party.  In the case of a trial the
determination of guilt can be reached by the factfinder despite the
protestation of innocence by the defendant.  The vagaries of the trial process
create more possibilities for the interplay between the deficient
performance of counsel and a result that is "insufficiently reliable to satisfy
the Constitution." Cronic, 466 U.S. at 662.  In the case of a guilty plea the
determination of guilt is almost always based on an acknowledgement of
guilt by the defendant in the course of a Rule 11 inquiry.  Moreover, that
proceeding is controlled by the careful questioning by the court that
explores the nature of the evidence the State would present at a trial,
counsel's role in advising the defendant, the defendant's understanding of
the evidence, the charges related thereto, the consequences of a plea, and
the voluntary and knowing nature of the plea.  Unlike at a trial, the
defendant who enters a plea of guilty in a Rule 11 proceeding is cooperating
in the creation of a record intended to instill confidence that the outcome is
a reliable reflection of guilt.  These characteristics of that proceeding make
it particularly difficult to demonstrate prejudice from the errors of counsel
and to argue that the errors of counsel are of such magnitude that the plea
process is presumptively unreliable "and no amount of showing of want of
prejudice would cure it."  Davis, 415 U.S. at 318 (quoting Brookhart v. Janis,
384 U.S. 1, 3 (1966)).
	[¶13]  Some courts have applied the presumption of prejudice analysis
to challenges to guilty pleas in a post-conviction proceeding.{5}  Other courts
have applied the presumption of prejudice analysis to the defendant's
challenge to a guilty plea but determined that the defendant was not entitled
to that presumption.{6}   Although we acknowledge the possibility that the
performance of counsel attendant to the entry of a guilty plea may be so
deficient that the presumption of prejudice is warranted, we conclude that
the facts of this case do not demonstrate such unreliability in the entry of
Laferriere's plea of guilty that the presumption of prejudice is warranted
	[¶14]  Laferriere alleges that it was error for his attorney to advise
police of Laferriere's phone call notifying him of the shooting.  However,
Laferriere's call to Norman Burby led Burby to call police at the same time as
Laferriere's attorney, thus ensuring police involvement in the immediate
investigation of the shooting.  Although Laferriere complains that his
attorney did not limit the ability of the police to speak with him, Laferriere
used those conversations to claim that the shooting was an accident, the
only exculpatory account he could offer under the circumstances.{7}
	[¶15]  Laferriere claims that he was prejudiced by his attorney's error
in advising him that he would be able to serve his sentence in a nursing
home rather than prison, and by the joint recommendation of a 55 year
sentence.  Laferriere's expectation as to where he would serve his sentence
is a collateral consequence of his plea and does not render it involuntary. 
Wellman v. State, 588 A.2d 1178, 1180-81 (Me. 1991).  There is no
evidence that Laferriere did not understand the length of the sentence he
faced as a consequence of his plea, and his dissatisfaction with the sentence
to which he agreed does not render his decision to agree involuntary.{8}
Indeed, as we have noted, the record reflects the care taken by the court in
conducting Laferriere's plea hearing to ensure that Laferriere understood
the consequences of his plea.  State v. Gilcott, 420 A.2d 1238, 1239 (Me.
	[¶16]  Laferriere also alleges that his attorney failed to explain the
nature of the charges against him and that he did not understand the crime
to which he was pleading guilty.  Again, the transcript of the plea
proceeding reveals the care the court took to explain the exact nature of the
charge against Laferriere and to ensure that he was knowingly pleading
guilty to that charge.{9}  There is nothing in the record to support Laferriere's
contention that he did not understand the crime with which he was
   	[¶17]  Finally, Laferriere contends that his attorney had a conflict of
interest in his representation because of the potential that he could have
been called as a witness for the State had the matter proceeded to trial.  "[A]
defendant who shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate prejudice in order to
obtain relief.  But until a defendant shows that his counsel actively
represented conflicting interests, he has not established the constitutional
predicate for his claim of ineffective assistance."  Cuyler, 446 U.S. at 349-50. 
The State brought the issue of Laferriere's attorney's involvement in the
case to the court's attention and represented to the court that the State
would neither call the attorney as a witness nor use at trial any information
garnered by means potentially violative of attorney-client confidences.  Given
these representations, Laferriere's attorney did not have a conflict of
	[¶18]  In summary, there is nothing in Laferriere's claims of
ineffectiveness of counsel that so erodes our confidence in the reliability of
the plea proceeding as the forum for the entry of a knowing and voluntary
plea by a guilty person that we must presume prejudice to assure the Sixth
Amendment's guarantee of a right to counsel. 
	[¶19]  Because we have determined that Laferriere failed to satisfy the
prejudice prong of the Hill test and that he is not entitled to a presumption
of prejudice, we need not decide if Laferriere has satisfied the first prong of
the Strickland test.
Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is
no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an insufficient
showing on one.  . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.  

Strickland, 466 U.S. at 697.  
	The entry is:
				Judgment affirmed.
Attorney for petitioner: Jefferson T. Ashby, Esq. (orally) Hardings Law Offices P O Box 427 Presque Isle, ME 04769-0427 Attorneys for State: Andrew Ketterer, Attorney General Charles K. Leadbetter, Asst. Atty. Gen. (orally) William R. Stokes, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} The Supreme Court held in Strickland that: A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. at 687. {2} See U.S. v. Timmreck, 441 U.S. 780, 784 (1979) ("Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.") (quoting U.S. v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971)). {3} A defendant entitled to the "presumption" of prejudice is relieved of the evidentiary burden of demonstrating a reasonable probability that but for the errors of counsel the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); Hill v. Lockhart, 474 U.S. 52, 59 (1985). The presumption attaches to the limited category of attorney errors that result in "a breakdown in the adversarial process that would justify a presumption that [the defendant's] conviction was insufficiently reliable to satisfy the Constitution." U.S. v. Cronic, 466 U.S. 648, 662 (1984). In those limited situations where the presumption is established, the defendant has satisfied the "prejudice" prong of the Strickland test. {4} We have had occasion to apply Strickland and Cronic to a claim of presumptive prejudice arising out of a court order. In State v. Gilman, we concluded that the court's order denying the defendant the opportunity to present a closing argument was per se prejudicial to the defendant. 489 A.2d 1100, 1003 (Me. 1985). We based our decision on the criminal defendant's "right to present closing argument, either himself or through counsel, on the evidence and the applicable law, regardless of how clear and conclusive the evidence may appear to be." Id. at 1102 (citing Herring v. New York, 422 U.S. 853, 858-59 (1975)). Although the court has discretion to control the scope of closing argument, we stated that the court "has no discreti