Mario Gordon v. State of Maine , 2024 ME 7 ( 2024 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 7Docket: Ken-22-315
Argued: July 6, 2023
Decided: January 25, 2024
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
Majority: STANFILL, C.J. and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
Dissent: JABAR, J.
MARIO GORDON
v.
STATE OF MAINE
HORTON, J.
[¶1] Mario Gordon appeals from a trial court judgment (Kennebec
County, Benson, J.) denying his petition for post-conviction review alleging
ineffective assistance of counsel. In the underlying criminal case, Gordon
pleaded guilty to multiple charges pursuant to a plea agreement with a
sentencing cap, in reliance on his attorney’s inaccurate prediction that Gordon
would likely receive a sentence substantially more lenient than the sentence
the court ultimately imposed. After an evidentiary hearing, the post-conviction
court concluded that Gordon had failed to meet his burden of persuasion. We
affirm the judgment.
2
I. BACKGROUND
[¶2] The following facts and procedure are drawn from the procedural
record, the post-conviction court’s supported findings, and our 2021 opinion
affirming Mario Gordon’s sentence, see State v. Gordon, 2021 ME 9, 246 A.3d
170. In July 2018, Gordon was charged by indictment with seven counts of
aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(D)
(2017), id. § 1105-A(1)(B)(1), (H) (2023); four counts of violating a condition
of release (Class E), 15 M.R.S. § 1092(1)(A) (2023); and one count of criminal
forfeiture, 15 M.R.S. § 5826 (2017).1 Gordon, 2021 ME 9, ¶ 3, 246 A.3d 170.
[¶3] While the case was pending, the State proposed a plea agreement in
which Gordon would plead guilty to several of the charges and receive a
sentence of eight years “straight,” i.e., with none of the period of incarceration
suspended. Gordon consistently rejected the proposal because he favored a
split sentence, i.e., a sentence that included a suspended period of incarceration
1When Gordon was arrested on these charges, he was on bail in another case in which he had
been charged, in 2016, and indicted, in 2017, with three counts of aggravated trafficking of scheduled
drugs (Class A), 17-A M.R.S. § 1105-A(1)(B)(1) (2023), and two counts of criminal forfeiture,
15 M.R.S. § 5826 (2016). State v. Gordon, 2021 ME 9, ¶¶ 2-3, 246 A.3d 170.
Title 17-A M.R.S. § 1105-A(1)(D) and 15 M.R.S. § 5826 have been amended since the occurrence
of the conduct giving rise to the charges; the amendments are not relevant to the issues presented in
this appeal. See P.L. 2021, ch. 396, § 4 (effective Oct. 18, 2021) (codified at 17-A M.R.S.
§ 1105-A(1)(D)); P.L. 2019, ch. 97, §§ 4-6 (effective Sept. 19, 2019) (codified at 15 M.R.S.
§ 5826(1)-(2), (6) (2023)); P.L. 2021, ch. 454, § 13 (effective Oct. 18, 2021) (codified at 15 M.R.S.
§ 5826(9) (2023)).
3
and probation. At an unrecorded dispositional conference convened by the
trial court in August 2019, the State reiterated its proposal. Gordon’s attorney
countered with a proposal for a sentence of ten years’ incarceration with all but
six years suspended and four years of probation.2 The State did not agree to
Gordon’s counter-proposal. The court told the prosecutor and Gordon’s
attorney that both proposals were “in the realm of reasonableness” and asked
the State to propose an agreement with a cap or limit on the maximum
sentence, which would allow Gordon to argue for less prison time and a split
sentence. The State indicated that, if Gordon did not accept its
eight-years-straight proposal, it would agree to recommend a sentence of no
more than twelve years straight, with Gordon free to argue for less prison time
and for probation. It is undisputed that the court did not express any opinion
on the reasonableness of the State’s sentencing-cap proposal.
[¶4] Based on the court’s statement that both parties’ initial proposals
were reasonable, Gordon’s attorney advised him that, if Gordon elected to agree
to a twelve-year cap, the sentence would likely be eight years straight or ten
years with some portion suspended, or something between those, but he did
not give Gordon any guarantee that the sentence would be less than the cap of
2Gordon’s trial counsel testified at the post-conviction review (PCR) hearing that the prosecutor
had made clear that the State would not agree to any split sentence.
4
twelve years straight.3 He also advised Gordon that the twelve-year-cap option
offered Gordon’s only hope of receiving a split sentence because the State
would not agree to a split sentence.
[¶5] Gordon’s attorney testified that after he and Gordon had conferred,
Gordon and the State agreed that if Gordon pleaded guilty that day, sentencing
would be by the same judge but would be deferred to provide Gordon some
time to decide between the State’s two proposals. Later that day, Gordon
pleaded guilty to three of the counts of aggravated trafficking and two of the
counts of violating conditions of release and admitted the count of criminal
forfeiture.4 During the plea colloquy, see M.R.U. Crim. P. 11(b)-(e), Gordon
acknowledged that he understood that he could be sentenced to up to twelve
years in prison under the terms of the plea agreement if he chose the
twelve-year-cap option instead of the eight-years-straight option. He also
confirmed that, apart from the eight-years-straight and twelve-year-cap
3 Gordon’s attorney testified that, given the court’s statement that both proposals were
reasonable, he believed that Gordon “would be no worse off by going in front of the judge with the
cap than if he was to work something out by agreement with the State” and advised Gordon
accordingly.
4 The State dismissed the remaining charges. During the same hearing, with respect to the charges
alleged in the other indictment, Gordon pleaded guilty to one count of aggravated trafficking and
admitted the two counts of criminal forfeiture, and the State dismissed the remaining charges.
5
options that were placed on record, no one had made any promises about what
would happen if he pleaded guilty.
[¶6] The court held a sentencing hearing in December 2019, about four
months after the dispositional conference and plea. At some point before
sentencing, Gordon chose to accept the State’s twelve-year-cap proposal.5
See Gordon, 2021 ME 9, ¶ 7, 246 A.3d 170. Gordon and the State submitted
sentencing memoranda in which the State argued for a sentence of twelve years
straight and Gordon argued for a sentence of ten years with all but four years
suspended and four years of probation. The memoranda did not allude to the
discussion during the dispositional conference months before, nor did the
State, Gordon, or the court allude to those discussions during the sentencing
hearing. After the parties presented their arguments, the court imposed its
sentence. In its Hewey analysis, see State v. Hewey, 622 A.2d 1151, 1154-55
(Me. 1993); 17-A M.R.S. § 1252-C (2018),6 the court (1) set the basic term of
imprisonment at twelve years, (2) weighed the aggravating and mitigating
circumstances and left the maximum term of imprisonment at twelve years,
5 The post-conviction court did not make a finding as to when or how Gordon expressed his
decision to proceed with the twelve-year-cap option. The post-conviction record contains an
affidavit signed by the prosecutor stating that Gordon’s attorney informed the prosecutor of the
decision by text message on September 11, 2019.
6 Title 17-A M.R.S. § 1252-C has since been repealed and replaced. See P.L. 2019, ch. 113, §§ A-1,
A-2 (effective May 16, 2019) (codified at 17-A M.R.S. § 1602 (2023)).
6
and (3) determined that no portion of that term would be suspended. The court
imposed concurrent sentences of twelve years straight (and mandatory
minimum, noncumulative fines) on the aggravated trafficking charges. Neither
Gordon nor his attorney voiced any surprise or objection in response to the
sentence during the hearing. Gordon’s attorney did not move to allow Gordon
to withdraw his plea, because as he testified at the post-conviction hearing, he
did not believe that there was a legal basis for the motion.
[¶7] Gordon sought leave to appeal from his sentence, and the Sentence
Review Panel granted his request.7 Gordon, 2021 ME 9, ¶ 11, 246 A.3d 170. In
a February 2021 opinion, we affirmed the sentence, concluding that (1) the
court’s sentencing process did not result in a due process violation because the
sentence fell within the range contemplated by the plea agreement and (2) the
court had not misapplied the sentencing statutes or disregarded relevant
factors in imposing the sentence.8 Gordon, 2021 ME 9, ¶¶ 12-21, 246 A.3d 170.
7 Gordon also filed a motion to correct or reduce the sentence, arguing that the court had
overlooked its statements that the more lenient plea proposals that had been discussed—but not
accepted—were within the realm of reasonableness. Gordon, 2021 ME 9, ¶ 9, 246 A.3d 170;
see M.R.U. Crim. P. 35. The trial court denied Gordon’s Rule 35 motion, finding that the sentence was
not influenced by a mistake of fact. See M.R.U. Crim. P. 35(c)(2). Gordon did not appeal from the
denial of his Rule 35 motion or from the judgment of conviction. See Gordon, 2021 ME 9, ¶¶ 13, 15
n.8, 246 A.3d 170.
8 We also indicated that, because Gordon had not filed an appeal from the judgment of conviction
or from the denial of his Rule 35 motion, he could challenge only the “propriety” of the sentence.
7
Our focus was on whether the sentencing court “abused its sentencing power
or acted unjustly in the sentencing process, in violation of due process.” Gordon,
2021 ME 9, ¶ 13, 246 A.3d 170. Although Gordon attempted to raise issues
regarding his reliance on the court’s comments during the dispositional
conference, we said that “any statements made at the dispositional conference”
were not “properly before us” because the statements made during the
unrecorded dispositional conference were not part of the trial court record.
Gordon, 2021 ME 9, ¶¶ 12-13, 15 n.8, 246 A.3d 170. We indicated that Gordon’s
argument based on the dispositional conference was “collateral” and could only
be pursued in a post-conviction review proceeding. Id. ¶ 15 n.9; see State v.
Adams, 2018 ME 60, ¶ 11, 184 A.3d 875.
[¶8] Gordon timely filed a petition for post-conviction review (and, later,
an amended petition), arguing that he had been denied the right to the effective
assistance of counsel. In keeping with longstanding practice, the
post-conviction claim was assigned to the judge who presided at Gordon’s plea
Gordon, 2021 ME 9, ¶¶ 13 & n.7, 15 n.8, 246 A.3d 170. We have since clarified that nothing prohibits
us from addressing arguments concerning the legality of a sentence in the context of a discretionary
sentence appeal, even if the appellant could have raised (but did not raise) those arguments in an
appeal from the conviction. State v. Murray-Burns, 2023 ME 21, ¶¶ 12-17, 290 A.3d 542.
8
and sentencing.9 The post-conviction court held an evidentiary hearing during
which it heard testimony from Gordon’s trial attorney and from Gordon. The
court admitted several exhibits, including affidavits by Gordon, Gordon’s trial
attorney, and the prosecutor who represented the State describing the
dispositional conference, pleas, and sentencing. Gordon acknowledged during
his testimony that his trial attorney “didn’t guarantee” that Gordon would
receive a sentence of less than twelve years and agreed that his attorney said
only that “that’s what he—he thought would happen.” He testified that,
although he knew that a twelve-year sentence was a possibility, he chose the
twelve-year-cap option because he and his attorney believed that the sentence
would probably be lower than twelve years even if it was a straight sentence,
and he wanted to be able to argue for a split sentence.
[¶9] In a written order dated August 31, 2022, the court denied Gordon’s
petition for post-conviction relief. The court stated that although trial counsel’s
“erroneous predictions and mistaken beliefs [were] regrettable, the evidence
[did] not support a finding of ineffective assistance of counsel.” Specifically, the
court found, inter alia, that trial counsel’s advice to Gordon to proceed with the
9 The practice of assigning post-conviction proceedings to the same jurist who presided over the
trial or plea proceeding at issue on post-conviction review rests on the principle that the presiding
judge or justice is in a better position to evaluate the merits of the post-conviction claim. See M.R.U.
Crim. P. 69A(b)(1).
9
twelve-year-cap option “represented a strategic decision to achieve some
probation like [Gordon] wanted,” given that the State would not agree to
recommend a split sentence; that there was no evidence that Gordon did not
understand that he could receive up to a twelve-year sentence; and that there
was no basis for Gordon’s counsel to object to the sentence when it was
imposed because Gordon understood the plea agreement and entered into it
voluntarily and the sentence was consistent with the agreement. The court
determined that Gordon had not demonstrated that his counsel’s
representation fell below an objective standard of reasonableness.
[¶10] Gordon sought a certificate of probable cause to appeal. See 15
M.R.S. § 2131(1) (2023); M.R. App. P. 2B(b)(1), 19(a)(2)(F). We granted
Gordon’s application in part, issuing a certificate of probable cause to appeal on
the issues of whether Gordon was deprived of his right to the effective
assistance of counsel because of (1) counsel’s advice to proceed with the plea
agreement under which Gordon could be sentenced to up to twelve years and
(2) counsel’s failure to object at sentencing to the twelve-year sentence that the
court imposed. We declined to permit Gordon to appeal on two other alleged
instances of ineffective assistance that he asserted in his application: that
10
counsel failed to advocate for a lower cap during the dispositional conference
and that counsel failed to appeal from the denial of his Rule 35 motion.
II. DISCUSSION
A. Elements and Standard of Review for a Post-Conviction Petition
Based on Ineffective Assistance of Counsel
[¶11] The United States and Maine Constitutions guarantee 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 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 (alteration omitted) (quoting Strickland v. Washington, 466 U.S.
668, 688, 693 (1984)).
[¶12] With respect to the performance prong, “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). We have
stated that “strategic and tactical decisions by defense counsel must be
manifestly unreasonable to result in a new trial based on ineffective assistance
11
of counsel,” Pineo v. State, 2006 ME 119, ¶ 13, 908 A.2d 632. However, “a
determination that defense counsel’s choices amount to ‘trial strategy’ does not
automatically insulate them from review,” Watson v. State, 2020 ME 51, ¶ 20,
230 A.3d 6 (quotation marks omitted). In the context of a conviction based on
a guilty plea, the purpose of the constitutional requirement of effective
assistance of counsel is to ensure that when giving advice, counsel acts “within
the realm of an ordinary competent attorney because the voluntariness of the
plea hinges upon whether the advice is that of an ordinary competent attorney.”
Aldus v. State, 2000 ME 47, ¶ 15, 748 A.2d 463; see McMann v. Richardson,
397 U.S. 759, 770-71 (1970) (holding that the issue is not “whether a court
would retrospectively consider counsel’s advice to be right or wrong, but . . .
whether that advice was within the range of competence demanded of
attorneys in criminal cases”).
[¶13] To establish actual prejudice, i.e., that counsel’s errors had an
adverse effect on the defense, a petitioner must demonstrate that, but for his
trial attorney’s deficient performance, “there is a reasonable probability that
‘the result of the proceeding would have been different.’”10 Ford, 2019 ME 47,
10“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 v.
Washington, 466 U.S. 688, 691 (1984).
12
¶ 20, 205 A.3d 896 (quoting Strickland, 466 U.S. at 694). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must
“show that the alleged error by counsel impugns the validity of the conviction.”
Laferriere v. State, 1997 ME 169, ¶ 8, 697 A.2d 1301. “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. (quotation marks omitted). “At the core of the prejudice
analysis” is whether the plea proceeding “produced a just result,” which is “the
knowing and voluntary entry of a guilty plea by a guilty party.” Id. ¶ 12
(quotation marks omitted). “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 . . . .” Id.
[¶14] 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. “Both prongs of the Strickland analysis often present mixed
questions of law and fact,” and we “apply the most appropriate standard of
13
review for the issue raised depending on the extent to which that issue is
dominated by fact or by law.” Hodgdon v. State, 2021 ME 22, ¶ 13, 249 A.3d 132(quotation marks omitted).
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.
Id. (quotation marks omitted).
B. Gordon’s Attorney’s Advice and Recommendation Regarding the
Twelve-Year Cap Agreement
[¶15] Gordon contends that his trial attorney provided ineffective
assistance by advising him to accept the twelve-year-cap offer instead of the
eight-years-straight offer. His brief asserts that his attorney all but guaranteed
him that his maximum sentence would have been ten years or less, that counsel
failed to convey adequately the significant risk associated with the
twelve-year-cap option, and that otherwise he would not have chosen to
proceed with the cap option. The State contends in response that Gordon’s
attorney acted reasonably in recommending that he accept the twelve-year-cap
offer while informing him that a twelve-year sentence was possible but
unlikely. The State points to the court’s statements during the dispositional
conference, Gordon’s consistent rejection of the eight-years-straight option in
14
favor of a sentence that included probation, and Gordon’s high exposure to a
much harsher sentence were he to proceed to a trial. The State also argues that,
based on Gordon’s responses to the court’s questions during the Rule 11 plea
inquiry, the court did not err in finding that Gordon understood the risk that he
could receive a sentence at the cap, thus making it difficult for Gordon to
demonstrate a lack of confidence in the justness of the outcome.
[¶16] Gordon’s case presented challenging circumstances for his trial
attorney. The State’s case was strong. Gordon’s exposure to a sentence of more
than twelve years, were he to go to trial, was high—he was charged with
multiple Class A crimes, the most serious charges arising while he was on bail
for other drug trafficking charges, and he had a significant trafficking-related
criminal history. The court had indicated during the dispositional conference
that the parties’ initial proposals—for an eight-year unsuspended sentence and
a ten-year sentence with a suspended portion—were reasonable. Gordon had
consistently rejected the State’s straight-sentence offer because he wanted to
obtain a sentence that included probation. Other than an open plea, which
would have exposed Gordon to a sentence of up to thirty years, the only way for
Gordon to achieve his goal of probation was to choose the cap agreement that
15
limited his risk to a twelve-year straight sentence while preserving his
opportunity to argue for a split sentence.
[¶17] Gordon’s attorney clearly evaluated the risks and benefits of each
of Gordon’s options and drew on his professional experience and judgment in
advising Gordon that (1) he should not go to trial, (2) the benefit of the
twelve-year-cap option was worth pursuing despite its risk because there was
a reasonable chance that the court would suspend a portion of the sentence,
and (3) a twelve-year straight sentence was possible, but unlikely. The advice
that Gordon should proceed with the twelve-year-cap option was a strategic
decision that was not “manifestly unreasonable,” Pineo, 2006 ME 119, ¶ 13,
908 A.2d 632, and it did not “fall[] below what might be expected from an
ordinary fallible attorney,” Philbrook, 2017 ME 162, ¶ 7, 167 A.3d 1266(quotation marks omitted).
[¶18] That the court ultimately imposed a twelve-year unsuspended
sentence (after reading the parties’ “exhaustive” sentencing memoranda,
listening to their arguments, and conducting a detailed Hewey analysis that
involved the weighing of significant aggravating and mitigating factors) does
16
not render Gordon’s attorney’s advice deficient.11 See Manley v. State, 2015 ME
117, ¶ 16, 123 A.3d 219 (explaining that “trial counsel’s strategic decisions,
even if they prove to be wrong in hindsight, . . . do not necessarily indicate
ineffectiveness” (alteration omitted)).
[¶19] Specifically, that Gordon’s attorney’s prediction of the likely
sentence proved incorrect does not establish ineffective assistance of counsel
or enable Gordon to withdraw his guilty plea. “An erroneous sentence estimate
by defense counsel does not render a plea involuntary.” United States ex rel.
Scott v. Mancusi, 429 F.2d 104, 108 (2d Cir. 1970) (alteration and quotation
marks omitted).12 “The fact that the defendant may have had expectations that
The attorney’s advice relied heavily on the court’s view that the State’s eight-years-straight
11
proposal and Gordon’s counter proposal were both reasonable. This was not an irrational
interpretation of the court’s comments, although it overlooked the fact that the court had not been
asked whether the State’s cap proposal was also reasonable. An indication by a judge at a
dispositional conference that the parties’ settlement proposals are “reasonable” means only that the
proposals fall within a range of sentences that might be accepted by the court as a negotiated
settlement. It does not telegraph what sentence a judge would actually impose in the event of an
open plea or capped-sentence agreement, nor did Gordon’s attorney testify that he believed the court
had made a commitment to impose a particular sentence. Moreover, absent the court’s commitment
to accept a plea agreement for a specific sentence, both the State and the defendant are at risk that
the sentence may vary from their expectations. The court at a dispositional conference may lack
access to information and arguments that would be presented at an actual sentencing: the
defendant’s allocution, the victim impact statement, the sentencing memoranda, and other
information about aggravating and mitigating factors. Unless the court commits itself to a particular
sentence, the court is free to impose any lawful sentence within the scope of the parties’ plea
agreement.
12 The circumstances in Mancusi are similar to those presented here. United States ex rel. Scott v.
Mancusi, 429 F.2d 104, 105-07 (2d Cir. 1970). Trial counsel testified that he had told the petitioner
that he “felt sure” that the petitioner would be ordered to serve his sentence in another jurisdiction
if he pleaded guilty, based on information from parole officers in the other jurisdiction and the court’s
17
his plea would result in leniency is not sufficient, in the absence of evidence that
the expectation was induced by the government, to justify withdrawal of the
plea.” Id. (alteration and quotation marks omitted); see also United States ex rel.
Bullock v. Warden, Westfield State Farm for Women, 408 F.2d 1326, 1330-31
(2d Cir. 1969); United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir.
1972) (“Although a claim frequently asserted is that the guilty plea was entered
by the prisoner in the erroneous belief, induced by discussions with his lawyer,
that he would receive a lesser sentence than that ultimately imposed or that he
would be permitted to withdraw his guilty plea, this has repeatedly been held
insufficient to warrant [post-conviction relief].”). Moreover, counsel’s advice in
this case did not include the objectively incorrect information that was present
in the cases on which Gordon relies. See United States ex rel. Hill v. Ternullo, 510
F.2d 844, 847 (2d Cir. 1975) (discussing the critical difference, in examining
whether trial counsel’s plea advice is deficient, between “a prediction which has
proven inaccurate” and “a misstatement of easily accessible fact,” such as a
statutory minimum or maximum sentence). Gordon’s attorney did not give the
indication that it would consider that outcome. Id. at 106, 108. The sentencing court ultimately
ordered otherwise. Id. at 107. The Second Circuit concluded that it was clear error for the
post-conviction court to find that counsel made misrepresentations to the petitioner; rather,
counsel’s representations “were couched in the language of hope rather than of promise and were
merely estimates made in good faith as to what [counsel] thought would” occur. Id. at 105, 108, 110.
In addition, the petitioner had, during the plea colloquy, unambiguously confirmed his understanding
that he might not be ordered to serve his sentence in the other jurisdiction. Id. at 106-08.
18
kind of objectively wrong plea advice—wrong when given, not wrong only in
hindsight—that courts have deemed sufficient to warrant post-conviction
relief. See e.g., Lafler v. Cooper, 566 U.S. 156, 161 (2012) (defendant rejected
plea agreement on advice of counsel, and was then convicted after trial and
received a more severe sentence, after counsel incorrectly advised that
defendant could not be convicted of the most serious charge); Missouri v. Frye,
566 U.S. 134, 138-39 (2012) (trial counsel failed to inform defendant of plea
offers, which expired); Magana v. Hofbauer, 263 F.3d 542, 544-45
(6th Cir. 2001) (trial counsel misinformed defendant about maximum
sentencing exposure); Julian v. Bartley, 495 F.3d 487, 495 (7th Cir. 2007) (trial
counsel gave defendant “clearly wrong” information about maximum
sentencing exposure).
[¶20] With respect to the prejudice prong, even if we considered
counsel’s advice to be constitutionally deficient, it would be difficult to conclude
that Gordon has demonstrated that his plea was involuntary given his express
acknowledgment during the Rule 11 colloquy that he understood that he could
be sentenced to up to twelve years and that no one had made any promises to
him about the sentence other than the State’s promise to recommend a
19
sentence of not more than twelve years.13 See Laferriere, 1997 ME 169, ¶¶ 8,
12, 697 A.2d 1301. A primary purpose of the detailed Rule 11 inquiry is to
ascertain whether the defendant understands and accepts the consequences of
the plea and whether the defendant has been promised or is relying on anything
beyond the terms of the plea agreement placed on record. A defendant’s
undisclosed expectation about the potential sentence cannot override what the
defendant says on the record in response to the court’s questions during a plea
inquiry.
[¶21] In addition, as the State argues, the post-conviction court found
that Gordon would not have accepted the eight-years-straight offer even if his
attorney had not advised him that a twelve-year sentence was unlikely if
Gordon chose the cap agreement. That finding is supported by the evidence
that Gordon had rejected that same offer from the start, that Gordon wanted to
obtain a sentence that included probation, and that even after the sentence was
imposed, Gordon asked trial counsel to request a seven-year sentence.
13 Gordon does not argue that prejudice should be presumed based on a constructive complete
denial of counsel under United States v. Cronic, 466 U.S. 648, 653-62 (1984). See United States v. Smith,
640 F.3d 580, 587 n.3 (4th Cir. 2011) (explaining that the general presumption that a guilty plea
accepted after a Rule 11 colloquy is conclusive “does not obtain when voluntariness is attacked based
on the constructive denial of counsel”).
20
[¶22] We agree with the post-conviction court that Gordon’s claim that
his attorney’s advice constituted ineffective assistance of counsel fails to satisfy
either prong of the Strickland standard.
C. Gordon’s Attorney’s Failure to Object to the Twelve-Year Sentence
[¶23] We granted a certificate of probable cause on the additional
question of whether Gordon was deprived of his right to the effective assistance
of counsel given his attorney’s failure to object at the time of sentencing to the
twelve-year sentence that the court imposed.
[¶24] It is telling that neither Gordon nor his attorney voiced any
objection or even surprise in response to the sentence when the court imposed
it. It can reasonably be inferred that neither objected because both understood,
as Gordon had confirmed at the time of his plea and again acknowledged in his
testimony at the post-conviction hearing, that he was at risk of that sentence
under the cap agreement with the State.
[¶25] Gordon appears to maintain that, had his attorney objected to the
sentence when it was imposed, he would have been able to withdraw his plea.
However, Maine Rule of Unified Criminal Procedure 32(d) provides that “[a]
motion to withdraw a plea of guilty . . . may be made only before sentence is
imposed.” The Dissent contends that Gordon’s attorney should have
21
interrupted the court in the middle of its sentencing analysis by making an oral
motion for Gordon to be allowed to withdraw his plea. Dissenting Opinion ¶ 39.
Even if such a motion would have been timely for purposes of Rule 35 and even
if counsel’s failure to make it reflected ineffective assistance—questions we
might well not decide in Gordon’s favor—Gordon would not be able to
demonstrate prejudice because he did not present any evidence during the
post-conviction hearing to suggest that the court would have granted the
motion had it been made.
[¶26] Gordon also appears to argue that his counsel’s failure to object at
the sentencing created a waiver or preservation issue as to his argument that
the court’s statements during the dispositional conference rendered his plea
involuntary. See Gordon, 2021 ME 9, ¶ 15 n.8, 246 A.3d 170 (noting that the
court’s statements during the dispositional conference were not properly
before this Court because Gordon did not “appeal from the order denying his
motion to correct or reduce his sentence”). As we went on to explain, however,
citing State v. Adams, 2018 ME 60, ¶ 11, 184 A.3d 875, Gordon’s involuntariness
argument was “collateral” to his sentence appeal but could be pursued in the
context of a petition for post-conviction review, which is what Gordon has done.
Gordon, 2021 ME 9, ¶ 15 n.9, 246 A.3d 170.
22
[¶27] The post-conviction court decided that (1) Gordon’s attorney’s
failure to object to the sentence at the time of sentencing did not fall below an
objective standard of reasonableness and (2) there was no reasonable
probability that the result of the proceeding—including the sentence and the
appeal—would have been different if trial counsel had objected during the
sentencing hearing. Gordon’s arguments do not persuade us otherwise.
The entry is:
Judgment affirmed.
JABAR, J., dissenting.
[¶28] I respectfully dissent because Gordon was misled into pleading
guilty by his attorney’s faulty advice in reliance on statements made by the
sentencing judge during a dispositional conference and he was never afforded
the opportunity to withdraw his guilty plea. The issue before us is the conduct
of Gordon’s attorney, not the conduct of the judge; however, the judge’s
statements to the parties during a dispositional conference place the attorney’s
representation in its proper context. Because Gordon was misled—whether by
his attorney, by the comments of the sentencing judge, or by a combination of
23
both—his guilty plea was not knowingly and voluntarily made. See State v.
Weyland, 2020 ME 129, ¶ 29, 240 A.3d 841. Prior to the court imposing the
sentence, but after the court completed its Hewey analysis, Gordon’s attorney
should have moved the court to allow Gordon to withdraw his guilty plea
pursuant to Maine Rule of Unified Criminal Procedure 32(d).
[¶29] In a post-conviction petition, the defendant must demonstrate that
(1) his attorney’s representation fell below an objective standard of
reasonableness and (2) his attorney’s errors had an adverse effect on the
defense. Strickland v. Washington, 466 U.S. 668, 688, 693 (1984); Ford v. State,
2019 ME 47, ¶ 11, 205 A.3d 896. I believe that the defendant has demonstrated
both prongs of the Strickland test.
A. Attorney’s Representation
[¶30] Under the first prong of the Strickland test, the petitioner must
demonstrate his attorney’s deficient conduct. Strickland, 466 U.S. at 687-88. In
Gordon’s case, there is no dispute that, during a dispositional conference, the
sentencing judge told the State’s attorney and Gordon’s attorney that he
believed that the State’s recommended sentence of eight years straight and the
defense’s recommendation of ten years, with all but six years suspended, with
probation, were both “in the realm of reasonableness.” With the parties at an
24
impasse regarding the two proposed sentence recommendations, the judge
recommended that the parties instead agree to a plea of guilty with an
agreed-upon cap. Ultimately, they agreed to a twelve-year cap.
[¶31] In State v. Sanney, the Hawaii Supreme Court, referencing ABA
Standards for Criminal Justice, Pleas of Guilty, Standard 14-2.1 (Am. Bar Ass’n
3d ed. 1999), adopted a standard that, “if a defendant pleads guilty or no contest
in response to a court’s sentencing inclination, but the court later decides not to
follow the inclination, then the court must so advise the defendant and provide
the defendant with the opportunity to affirm or withdraw the plea of guilty or
no contest.”14 404 P.3d 280, 291 (Haw. 2017). The Sanney court noted that this
rule would protect defendants from questioning “whether they were somehow
misled into entering into a change of plea based on a judge’s stated sentencing
inclination” and would ensure that the record “is adequate to make a reasoned
and informed judgment as to the appropriate penalty,” including containing
“adequate reasons . . . for [a] change in a trial court’s sentencing inclination.” Id.Although Gordon’s sentencing judge may not have indicated a specific sentence
14 An indicated sentence, or sentencing inclination, is a court’s recommendation of “what sentence
it will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial
or admitted by plea.” People v. Clancey, 299 P.3d 131, 135 (Cal. 2013) (alteration and quotation marks
omitted). A court making a sentencing inclination may never bargain with the defendant over the
sentence, and the court should avoid indicating a sentence while plea bargaining is ongoing “unless
the court is convinced the punishment proposed by the [State] is not an appropriate sanction.” Id. at
138-39; accord State v. Gordon, 2021 ME 9, ¶¶ 31-32, 246 A.3d 170 (Jabar, J., concurring).
25
when he expressed his opinion that the State’s and Gordon’s attorneys’
recommendations both were in the realm of reasonableness, his comments led
Gordon’s attorney to reasonably believe that he was indicating his inclination
toward a sentence in the range between the two recommendations.
[¶32] Notwithstanding my concern with the actions of the sentencing
judge, the judge’s conduct is not before us because Gordon’s attorney failed to
properly raise that issue below by appealing the denial of Gordon’s motion to
correct or reduce his sentence. Gordon, 2021 ME 9, ¶ 15 n.8, 246 A.3d 170; see
generally M.R.U. Crim. P. 35. When Gordon ultimately sought review of his
sentence, we stated that the issue surrounding the judge’s conference
statements and Gordon’s attorney’s advice following that conference could be
raised only on post-conviction review. Gordon, 2021 ME 9, ¶ 15 nn.8-9, 246 A.3d
170. Here we are.
[¶33] The attorney’s conduct is now before us. The attorney’s reliance on
the judge’s sentencing statements during the dispositional conference and
advice to Gordon that he would receive a sentence consistent with those
statements if he agreed to a cap plea, combined with the attorney’s failure to
move to allow Gordon to withdraw his guilty plea, constitute deficient
representation below an objective standard of reasonableness.
26
[¶34] It is obvious from the attorney’s testimony at the post-conviction
hearing that he relied on the judge’s statements. The attorney testified that he
“didn’t understand why a judge would recommend a cap and not . . . do one of
the two or something in between.” The attorney was “encouraged” by the
judge’s statements, and expressed to Gordon after the conference that he
believed that Gordon “would be no worse off by going in front of the judge with
the cap than if he [was] to work something out by agreement with the state.” He
believed he “was liberating the judge to do something along the lines of what
[the State] and [the defense] had already talked about” and advised Gordon that
the only way to receive a sentence within the range of the parties’
recommendations was to agree to a cap proposed by the prosecutor at the
judge’s suggestion.15
[¶35] The attorney testified that Gordon was receptive to that advice and
ultimately agreed to the cap plea despite initial reservations. The attorney
further testified that, in discussing the plea options with Gordon, given “the way
the dispositional conference played out, [they] wanted [the conference judge] to
15The Court’s decision states multiple times that Gordon’s attorney advised him that the
twelve-year cap plea was the only hope of receiving a split sentence. Supra ¶¶ 4, 8. This grossly
understates the attorney’s advice. The attorney’s advice to plead guilty with a twelve-year cap was
given not because it was the only way for Gordon to receive a split sentence but because the attorney
believed and expressed to Gordon that, if he agreed to the cap, he would receive a sentence within
the range of the recommendations made during the dispositional conference.
27
be the sentencing judge.” Finally, the attorney testified that he believed that
Gordon would have agreed to the State’s proposed eight-year-straight sentence
had he advised Gordon to take it. This testimony demonstrates that the attorney
believed Gordon would receive a sentence no greater than the State’s
recommendation of eight years straight if, and only if, he agreed to the cap in
reliance on the judge’s statements that the recommendations of the State and
the defense were reasonable. This belief was expressed to Gordon.
[¶36] Gordon testified that his attorney informed him of the judge’s
comment that both parties’ recommended sentences were reasonable and told
Gordon that he “would get between what he asked for and what [the State] asked
for since the judge said it was reasonable.” Based on his discussions with the
attorney, Gordon understood that the sentence would be between the State’s
and the defense’s recommendations at the dispositional conference. He did
acknowledge that the attorney made no guarantees. But when asked whether
his attorney told him that he was risking more than eight years in prison if he
agreed to a twelve-year cap, Gordon responded, “Not to my knowledge.”
Gordon, like his attorney, also testified that he would have taken the State’s
proposed eight years straight had his attorney recommended it, because
otherwise he risked receiving a higher sentence.
28
[¶37] Prior to imposing the sentence, the judge enunciated his Hewey
analysis, concluding that the court would impose a sentence of twelve years
straight. Following the Hewey analysis and before the judge imposed the
sentence, Gordon’s attorney never interjected to raise the issue of the judge’s
statements during the dispositional conference and his mistaken belief that the
judge would impose a sentence between what the judge considered to be two
reasonable recommendations. The attorney failed to notify the judge that he
had advised his client to plead guilty based on the judge’s sentencing comments
made during the dispositional conference. And most importantly, he never
made a motion to allow Gordon to withdraw his guilty plea.16
[¶38] The attorney acknowledged these mistakes during his testimony.
When asked whether he orally stated that the contested sentencing hearing was
the result of the dispositional conference statements regarding the defendant’s
ability to argue for an alternative, shorter sentence, the attorney admitted that
he did not. When asked whether, when the court completed its Hewey analysis,
he moved for Gordon to be allowed to withdraw his plea, the attorney conceded
The fact, as the Court observes, that Gordon’s attorney did not “voice any objection or even
16
surprise in response to the sentence” is precisely the problem. The attorney should have been
surprised and should have objected.
29
that he did not because he did not believe that there was a legal basis to
withdraw the plea.
[¶39] This was a misreading of the law. The attorney could have, and
should have, moved the court to allow Gordon to withdraw his plea immediately
following the court’s Hewey analysis but before the judge imposed the sentence.
A motion to withdraw a guilty plea may be made before a sentence is imposed.
M.R.U. Crim. P. 32(d); State v. Hillman, 2000 ME 71, ¶ 7, 749 A.2d 758 (“A
defendant may seek to withdraw a plea of guilty . . . any time before sentence is
imposed.” (emphasis added)). The attorney never moved to allow Gordon to
withdraw his plea and never attempted to conference with the court regarding
the judge’s comments during the dispositional conference and the attorney’s
reliance on those comments when advising Gordon to plead with a twelve-year
cap in place—advice the attorney admits was “bad advice.”
[¶40] Instead, the attorney mistakenly believed that he could address in
a Rule 35 motion the sentencing-inclination issue surrounding the dispositional
conference statements. See M.R.U Crim. P. 35. Again, this was error, and the
attorney acknowledged as much. And despite believing that a Rule 35 motion
was the proper vehicle to rectify the issue created by the comments made by the
30
judge during the dispositional conference, the attorney never appealed the
denial of that motion.
[¶41] I agree with the Court that an attorney’s estimate of what the
sentence might be is not necessarily grounds for post-conviction relief. This
case, however, is distinguishable from the cases that the Court cites to support
that contention. The Court likens Gordon’s case to United States ex rel. Scott v.
Mancusi, but the cases differ in critical aspects. First, prior to accepting the
defendant’s guilty plea, the Mancusi sentencing court discussed with the
defendant the judge’s statements at an earlier conference regarding sentencing
with the defendant. 429 F.2d 104, 106 (2d Cir. 1970). The judge gave the
defendant multiple opportunities to confirm that he understood that his sentence
may not be consistent with the statements made at the earlier conference.17 Id.The Mancusi sentencing judge, who had told the defendant’s attorney in a conference prior to
17
the plea colloquy that he would consider ordering a portion of the defendant’s sentence to be served
in another jurisdiction, made the following disclosure to the defendant prior to accepting his guilty
plea:
Your attorney has indicated to me that he’s getting some correspondence from the
correction or prison officials in Washington, D.C., which will indicate to the court what
action they are going to take and he’s going to submit that to me and after I have had
this documentary evidence I will then have to make a determination as to whether or
not I can send you back or whether you should go to Attica here in this state, are you
aware of that?
Mancusi, 429 F.2d at 106. When the defendant answered affirmatively, the judge went on:
31
The Second Circuit noted that, although the attorney had told the defendant that
he “felt sure” that the judge would order the sentence to be served in another
jurisdiction, “[t]he pleading colloquy . . . demonstrates that [the defendant] knew
the matter was still far from settled.” Id. at 108. In contrast, the court at
Gordon’s plea colloquy never discussed the statements made during the
dispositional conference that Gordon relied upon, per his attorney’s advice, in
accepting the cap plea, or gave Gordon the opportunity to confirm that he
understood that he may not be sentenced consistently with those statements.
[¶42] Second, when Mancusi learned that he may not receive the sentence
that had induced him to plead guilty, he moved to withdraw his plea and, after
the court denied the motion, the attorney again requested that the defendant be
In other words, I am not telling you now and I have not told your attorney or the
assistant district attorney that you are under all conditions, under all circumstances
going back to Washington, D.C. That might not happen.
Id. The defendant again said, “Yes.” Id. Still, the court continued the exchange:
The Court: You are aware of that?
The Defendant: Yes, sir.
The Court: It might well be, after reviewing the papers and probation investigation
that I might feel that the interest of justice might be served by your
being sentenced to serve your term here in New York State.
The Defendant: Yes.
The Court: Now, with that explanation do you want to say anything?
The Defendant: Well, I don’t guess I have anything to say.
The Court: Has everything I said been understandable to you.
The Defendant: It’s been understandable to me.
Id. Only then did the court proceed with questions ensuring that the defendant’s plea of guilty
was knowing and voluntary.
32
permitted to withdraw his guilty plea. Id. at 107. On appeal, the Second Circuit
noted that an argument for withdrawal based on the defendant having been
“misled” by his attorney’s suggestion that he would be allowed to serve his
sentence in another jurisdiction would have been “a strong one.” Id. at 108-09.
Here, Gordon’s attorney failed to move for Gordon to withdraw his plea, which
would have been justified based on the attorney having misled Gordon to enter
a guilty plea. Unlike Mancusi, Gordon was never afforded the opportunity to
affirm that he understood that the judge may sentence him outside the range
that the attorney assured him the judge found reasonable, and Gordon’s
attorney never moved the court to allow Gordon to withdraw his plea after
learning that the judge would not sentence him within that range.
[¶43] The other cases cited by the Court do not support its decision in this
case. In both United States ex rel. Bullock v. Warden, Westfield State Farm for
Women, 408 F.2d 1326, 1328-30 (2d Cir. 1969), and United States ex rel. Curtis
v. Zelker, 466 F.2d 1092, 1096-97 (2d Cir. 1972), the defendants’ attorneys were
not relying on the statements of the sentencing judge when they advised their
clients to plead guilty, and thus their clients could not reasonably have believed
that the advice was anything more than the attorney’s estimate of what the
sentence might be. The context of Gordon’s plea, including the judge’s
33
statements regarding the reasonableness of the parties’ sentencing proposals
and the attorney’s reliance on those statements, is of paramount importance in
deciding whether Gordon knowingly entered a guilty plea.
[¶44] The Court indicates in a footnote that Gordon’s attorney’s reliance
on the judge’s comments during the dispositional conference was not an
“irrational interpretation” of the judge’s comments regarding a reasonable
sentence. Court’s Opinion ¶ 18 n.11. This statement clearly demonstrates the
dilemma before us. On one hand, if Gordon’s attorney was rational—and I
assume that the Court means “reasonable”—in interpreting the judge’s
comments as a forecast of the likely sentencing range, then the judge’s
comments were an indication of his inclination to sentence Gordon to something
between the two reasonable positions of the parties proposed during the
dispositional conference. And when the sentencing judge later failed to
sentence Gordon according to the attorney’s reasonable interpretation of the
sentencing inclination, the attorney should have objected, asked for
clarification, and ultimately moved the court to allow Gordon to withdraw his
plea.
[¶45] On the other hand, if Gordon’s attorney was irrational, or
unreasonable, in understanding the sentencing judge’s comments during the
34
dispositional conference as an indication of the likely sentence, then he gave
Gordon substandard advice when he conveyed to Gordon that if Gordon pleaded
guilty the judge would impose a sentence of no more than the eight years
straight proposed by the State during the conference. Again, when the judge
completed the Hewey analysis, the attorney should have objected and notified
the sentencing judge that he had misinterpreted the judge’s comments at the
dispositional conference and given Gordon faulty advice based on those
comments. Either way, Gordon was misled into pleading guilty as a result of the
judge’s comments, his attorney’s deficient counsel, or a combination of both.
[¶46] Gordon’s attorney’s failure to rectify this issue by moving to allow
Gordon to withdraw his guilty plea prior to the court imposing the sentence was
legal representation below an objective standard of reasonableness under the
first prong of Strickland.
B. Prejudice
[¶47] Under the second Strickland prong, the prejudice in this case is
obvious. A defendant is entitled withdraw his guilty plea if it can be shown that
his plea was not knowingly and voluntarily made. See M.R.U. Crim. P. 11; State
v. Pfeil, 1998 ME 245, ¶ 7, 720 A.2d 573. In State v. Weyland, we stated that
“[a]lthough relief should be granted liberally, a defendant does not have an
35
absolute right to withdraw a plea.” 2020 ME 129, ¶ 17, 240 A.3d 841 (quotation
marks omitted). Rather,
[t]rial courts evaluate four factors when deciding motions to
withdraw pleas, and we similarly evaluate those factors when
reviewing a trial court’s exercise of discretion. They are (1) the
length of time between the defendant’s entering the plea and
seeking to withdraw it; (2) any prejudice to the State that would
result if the plea were withdrawn; (3) the defendant’s assertion of
innocence; and (4) any deficiency in the Rule 11 proceeding. No
one factor is necessarily dispositive. However, one factor’s weight
alone may tip the scale in the defendant’s favor.
Id. ¶ 18 (citations and quotation marks omitted).
[¶48] It is true that, under the first and third factors, there was
considerable time between Gordon’s plea and sentencing, see Hillman, 2000 ME
71, ¶ 9, 749 A.2d 758 (stating that nineteen days between entry of plea and
request to withdraw plea weighs in defendant’s favor), and Gordon did not
assert innocence, see id. ¶ 12 (“[T]he complete absence of a protestation of
innocence in support of a motion to withdraw weighs against a defendant . . . .”).
However, if Gordon had been afforded the opportunity to withdraw his plea,
there would have been no prejudice to the State because it could have presented
any evidence against Gordon at trial. See id. ¶ 10 & n.5.
[¶49] Further, and more importantly, the Rule 11 proceeding in this case
was compromised. Though “[w]e have never required strict compliance with
36
Rule 11 in order to uphold a guilty plea,” the proceeding is defective “if the total
record fails to establish adequately a factual matrix by which the plea is
affirmatively shown to have been voluntarily and understandingly made.”
Weyland, 2020 ME 129, ¶ 29, 240 A.3d 841 (alteration and quotation marks
omitted). Here, the facts indicate that Gordon’s plea was not voluntary because
it was induced by the attorney’s misplaced reliance on the judge’s statements at
the dispositional conference and assurances that Gordon would receive a
sentence no greater than the State’s recommendation of eight years straight. In
State v. Rose, the Missouri Supreme Court stated that “[i]f the defendant should
be misled or be induced to plead guilty by fraud or mistake, by misapprehension,
fear, persuasion, or the holding out of hopes which prove to be false or ill
founded, he should be permitted to withdraw his plea.” 440 S.W.2d 441, 443
(Mo. 1969) (quotation marks omitted). Similarly, in Ex parte Otinger, the
Alabama Supreme Court held that a defendant should have been afforded an
opportunity to withdraw his guilty plea when the trial judge’s indication to
defense counsel that defendant would receive a split sentence materially
induced the defendant’s guilty plea, but the judge later imposed a straight
sentence. 493 So. 2d 1362, 1363-64 (Ala. 1986)
37
[¶50] The errors committed by Gordon’s attorney clearly had an adverse
effect on the defense. Why else would Gordon and his attorney indicate that
Gordon would plead guilty only if the same judge who made the statements
during the dispositional conference presided at the sentencing hearing? Gordon
was relying upon his attorney’s misplaced advice. Had the attorney acted
immediately before the court imposed its sentence, “there is a reasonable
probability that the result of the proceeding would have been different”: Gordon
would have been able to withdraw his guilty plea.18 Ford, 2019 ME 47, ¶ 20, 205
A.3d 896 (quoting Strickland, 466 U.S. at 694).
Paul D. Corey, Esq. (orally), Auburn, for appellant Mario Gordon
Aaron M. Frey, Attorney General, and Katie Sibley, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine
Kennebec County Unified Criminal Docket docket number CR-2020-340
FOR CLERK REFERENCE ONLY
18 “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Ford v. State, 2019 ME 47, ¶ 14, 205 A.3d 896 (quoting Strickland, 466 U.S. at 694).