Wai Chan v. State

1

WAI CHAN Petitioner v. STATE OF MAINE Respondent

No. AROCD-CR-20-00614

Superior Court of Maine, Aroostook

September 11, 2023

DECISION

INTRODUCTION

Pending before the court is Wai Chan's (hereafter "Petitioner") Petition for PostConviction Review. Hearing on the petition was held on July 12, 2023. Petitioner was present by ZOOM with attorney Winger, also by ZOOM. The court provided three mandarin translators to assist Petitioner with this hearing and with discussions between Petitioner and his attorney. The State was represented by District Attorney Collins, who was present in the courtroom. Testimony was received from Attorney Stephen Smith, and Petitioner. The record also includes, and the court has considered, the docket sheets and file contents of the underlying criminal case, the transcript of trial proceedings, and the appellate decision. The Court's pre-hearing order dated February 14, 2023 set the post-hearing briefing schedule in accordance with M.R.Un.Crim.P. 73(c). Petitioner failed to file any post-hearing brief. The State filed its post-hearing brief on August 30, 2023. After consideration of the record presented and the arguments of counsel, the court finds and orders as follows:

ISSUES IDENTIFIED

By indictment dated November 9, 2017, Petitioner was charged with the following offenses alleged to have occurred on or about the following dates:

1. Burglary - Class B, 17-A M.R.S. §401(1)(B)(4) - September 3, 2017; and

2. Theft by Unauthorized Taking - Class B, 17-A M.R.S §353(1) (B) (1) - September 3,2017.

A jury trial was held on April 22,2019 and April 23,2019. The jury returned a verdict of guilty on both counts set forth above. The jury found that the value of the stolen property was more than $1,000 but not more than $10,000, resulting in a conviction for a Class C Theft by Unauthorized Taking. See, 17-A M.R.S. §353(1)(B)(4). Petitioner was sentenced to 3 years on Count 1, 2 years and $1,000 of restitution on Count 2. Petitioner appealed the convictions to the Law Court. The trial court was affirmed in a decision dated June 18, 2020. State v, Chan, 2020 ME 91. On October 22, 2020, Petitioner filed a petition for post-conviction alleging ineffective assistance of counsel and other vague claims of prejudice from the trial.

The court ordered Petitioner to show cause as to why the petition should not be dismissed for failure to show impediment pursuant to 15 M.R.S. §2124. Petitioner did not do so in accordance with the court's order. At the commencement of the hearing on the Petition, the parties stipulated to the fact that the Petitioner currently has an outstanding restitution obligation. Id. at §2124(a)(F), By order dated February 14, 2023, the Petitioner was ordered to provide Respondent with clarification of the claims being advanced and file such clarification with the court by February 28,2023. Petitioner failed to do so but did file on July 12, 2023 at 7:39 a.m "Petitioner's Hearing Memorandum" making clear that the sole claim being advanced by Petitioner was that his trial counsel provided ineffective assistance in failing to investigate and use an exhibit related to an HP Laptop purchase at trial for purposes of impeachment of one of the State's witnesses, Jing Zhou. All other claims asserted in the Petition were withdrawn by Petitioner.

STANDARD OF REVIEW

Claims of ineffective assistance of counsel raised on post-conviction review are governed by the two-part test outlined in Strickland v. Washington, 466 U.S. 668 (1984), Applying that test, a petitioner bears the burden, at the post-conviction trial, of proving the following: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient representation resulted in prejudice. Philbrook v. State, 2017 ME 162, ¶ 6, The second prong of the test is also described as whether errors of counsel actually had an adverse effect on the defense. Pahnley v. State, 2018 ME 92, ¶17; Hodgdon v. State, 2021 ME 22, ¶11.

As to the first prong of the test, counsel's representation falls below the objective standard of reasonableness if it falls below what might be expected from an ordinary fallible attorney. "Judicial inquiry into the effectiveness of representation is 'highly deferential.'... '[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Watson v. State, 2020 ME 51, P20, 230 A.3d 6, 12 (Quoting, Middleton v. State, 2015 ME 164, ¶ 13,129 A.3d 962 (quoting Strickland, 466 U.S. at 689)). The court is mindful that trials play out in real time and the post-conviction court "must make every effort to eliminate the distorting effects of hindsight." Philbrook v. State, 2017 ME 162, ¶ 6.

In order to prove that counsel's performance was constitutionally deficient,

"a defendant must show that counsel's representation fell below an objective standard of reasonableness. The question is whether the counsel's performance fell within the wide range of reasonable professional assistance that a competent criminal defense counsel could provide under prevailing professional norms. The Strickland test compels us to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time." (Internal citations and punctuation omitted.)

Meggans v. State of Maine, 2014 ME 125, ¶23,103 A.3d 1031,1039 (Emphasis added).

As to the second part of the Strickland test, "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." Hodgdon v. State, 2021 ME 22, P12,249 A.3d 132,136.

DISCUSSION

Trial counsel provided the discovery material to the Petitioner. Included in the discovery material was a document setting forth the bar code, serial number, and product number of an HP Pavilion Notebook. Petitioner claims that he informed his attorney that there was an "issue" with that documentation that required further investigation. Petitioner has failed to convince the court that he actually provided his attorney the specific information that the documentation did not support the purchase date of the laptop as alleged by the State's witness. Petitioner has shown that trial counsel was aware of Petitioner's contention that he was not present during the purchase of...