Chan v. State of Maine

STATE OF MAINE UNIFIED CRIMINAL DOCKET

AROOSTOOK, ss DOCKET NO. AROCD-CR-20-00614
WAI CHAN )
Petitioner )
)
vs ) DECISION
)
STATE OF MAINE }
Respondent )
INTRODUCTION

Pending before the court is Wai Chan's (hereafter “Petitioner”) Petition for Post-
Conviction 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. Fahnley v. State, 2018 ME 92, 717;
Hodgdon v. State, 2021 ME 22, 911.

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 US.
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, 423,103 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 the
laptop.

Trial counsel contended that the issue of the purchase date of the laptop was far
from central to the trial. The court notes that the date of the purchase was not included
at all in Jing Zhou's testimony. See, Trial Transcript - Vol.1, Pages 143-169. The
discrepancy in the purchase date as contended by Petitioner and the date as perhaps
identified in the discovery materials from statements of the witness was approximately 5
or 6 months, ‘There were several victims to the theft of items of property and large sums
of cash. The laptop was merely one of items identified as being stolen. The trial strategy |
was to focus efforts on the discrepancy between date Petitioner terminated his
employment and the date the Petitioner was alleged to be in the vicinity of the crime
(being two weeks later), with no resources in the area, and the unreliability of the video
evidence.

As it relates to this inaction by defense counsel in failing to further press the issue
of the purchase date of the laptop, the court finds that the Petitioner has failed to show
that defense counsel's performance “fell below an objective standard of reasonableness.” |
Technically, there is no discrepancy on purchase date as no purchase date was elicited in
the testimony. If the purchase date is as Petitioner contended, it could call into question
the witness’s description of the events surrounding the purchase. However, the

Petitioner could have presented testimony to refute the claim that he was present during

the purchase of the laptop, and he elected not to do so. See, Trial Transcript - Vol.2, Pages
138-143, The purpose of the testimony regarding the purchase of the laptop was to show
that the Petitioner was aware of and familiar with the laptop. The fact that the witness
had a laptop in the common area of the living quarters shared by the Defendant was not
disputed. More importantly, multiple other witnesses identified the Petitioner and his
vehicle as being present at the time of the theft.

Petitioner has failed to present any admissible evidence to support the inferences
or conclusions he contends the jury should have reached if they had received evidence
regarding the laptop purchase date. The only support for Petitioner’s contention that
the records would reflect a December, 2016 purchase date was his testimony that he
found the VIN and searched the manufacturer's website as to when it was sold.
Assuming arguendo that the Petitioner could satisfy the evidentiary prerequisites to
admit such evidence at trial, it is not clear as to whether this “purchase date” is the date
the unit was sold by the manufacturer to the retailer, whether it relates to date of the
ultimate sale to the consumer, or whether it relates to a date the unit was registered by a
consumer for warranty purposes. Again, the laptop was one of many items included in
the theft and Zhou was one of many witnesses presented by the State to support the
conviction,

Considering all of evidence against the Petitioner and the circumstances present
at trial, the Petitioner has also failed to affirmatively show that the decision to not raise
the issue of the laptop purchase date undermines confidence in the outcome of the case

and renders that outcome unreliable. Theriault v, State, 2015 ME 137, 4919, 20, 125 A.3d

1163, 1170("...the result of a proceeding can be rendered unreliable, and hence the
proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance
of the evidence to have determined the outcome”).

Based upon the foregoing, Petitioner Wai Chan’s petition for post-conviction relief

is DENIED.

Dated: Solel. /, 2023 A, WL

Justice, Superior Court