Gordon v. State

308 A.3d 228

2024 ME 7

Mario GORDON

v.STATE of Maine

Docket: Ken-22-315

Supreme Judicial Court of Maine.

Argued: July 6, 2023

Decided: January 25, 2024

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

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.

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.

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 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 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 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, 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. 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 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 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...