An attorney for Daniel L. Fortune, who was sentenced to life in prison for a 2008 machete attack in Pittston that nearly killed a 10-year-old girl and her father, asked Monday for another chance at an appeal in the case.
Attorney Rory A. McNamara asked the Maine Supreme Judicial Court for clarification of an April 19, 2016, order from a Superior Court judge about ineffective assistance of a prior attorney who represented Fortune in an appeal.
McNamara told the seven supreme court justices, “We should stop guessing and just send it back on remand.”
McNamara’s written brief says the order “is so unclear as to necessitate remand. … Any appeal on the merits of the court’s denial of his petition for post-conviction review must wait until the post-conviction court issues a new order clearly and properly applying the applicable legal standards for evaluating claims of ineffective assistance of counsel.”
Chief Justice Leigh Saufley framed the question on Monday, telling McNamara, “Right now we’re trying to determine whether counsel’s actions were deficient and had an effect.”
The justices issue rulings in writing sometimes months after oral arguments.
Fortune, now 29, formerly of Augusta and Gardiner, and his foster brother Leo R. Hylton were convicted of invading the home of William Guerrette, a former state legislator, and his family and attacking them, leaving the father and the daughter fighting for their lives and prompting the mother to scramble out a bathroom window, leap 20 feet to the ground and flee barefoot through the woods to a neighbor’s for help.
Fortune, who had been a star athlete at Gardiner Area High School, had been a friend of the Guerrette family and occasionally spent the night at their home, at one point stealing a safe from the home that contained thousands of dollars in cash and valuable coins.
Hylton pleaded guilty to a number of charges related to the May 27, 2008, attack on the family and was sentenced to 50 years in prison. Fortune was convicted by a jury in Somerset County in May 2010.
BROTHER’S TESTIMONY REVISITED
On Monday, Associate Justice Ellen Gorman revisited Hylton’s testimony at Fortune’s trial, where Hylton said he could remember little about the night of the home invasion.
Gorman noted that Hylton admitted on the witness stand that a letter of apology to the Guerrettes was in his handwriting.
At Fortune’s trial, a court reporter read to jurors what Hylton said at his sentencing hearing. Hylton put the blame on Fortune and apologized for his role in the home invasion, saying he should have stopped Fortune, a man he viewed as his older brother.
In a videotaped re-enactment, Hylton led investigators through the Guerrette home to show how he swung a machete at Guerrette’s neck after the man pointed a handgun at him, and then described how he ascended a stairway to begin attacking Nicole to eliminate witnesses.
Fortune, who testified that he hurt no one, received concurrent life sentences on three aggravated attempted murder convictions and shorter prison terms on a series of burglary, robbery and conspiracy charges.
In December 2011, the Maine Supreme Judicial Court issued a unanimous ruling upholding Fortune’s conviction and the concurrent life sentences.
In that appeal, Fortune maintained that the life sentences were excessive and disproportionate to the crimes.
Fortune’s case was the first time the state’s harshest penalty — life in prison — was imposed for a crime that its victims survived. Judges must abide by strict guidelines set by the state Supreme Court to impose a life sentence.
‘THAT IS A VERY CLEAR PHRASE’
Maeghan Maloney, district attorney in Kennebec and Somerset counties, who argued for the state on Monday, maintains that the post-conviction review and the appellate processes were done properly.
She asked that the Maine Supreme Judicial Court dismiss the petition.
In allowing Fortune’s post-conviction appeal to proceed, Justice Donald Marden wrote in December 2015 that an attorney representing him in an earlier appeal was ineffective by failing to contend that the entire statement by Hylton at Hylton’s sentencing hearing should have been introduced at Fortune’s trial.
However, Marden said he was “not satisfied that the exclusion” of all of Hylton’s remarks at his sentencing hearing would have changed the verdict in the Fortune case.
Saufley read aloud the part of Marden’s decision which says Fortune is entitled to an appeal on the issue of inadequate appellate representation.
“For a jurist, that is a very clear phrase,” Saufley said.
Maloney responded, “Ultimately how can attorney (Arnold) Clark be found to be ineffective for not raising an appellate issue … he knew he was going to lose?”
In Maloney’s brief, she said, “Even if there was error by the appellate counsel in failing to bring the Confrontation Clause claim, the deficient performance did not prejudice the defense, and therefore the result was not unreliable.”
The Confrontation Clause issue involves the admission of out-of-court statements and the right of defendants to question witnesses who testify against them.
She noted that Hylton testified at Fortune’s trial; however, Hylton said he did not remember a number of things from the night of the attack.
He repeatedly said, “I do not recall” to the prosecutor’s questions about clothing, weapons and his prior statements to investigators.
Hylton is at the Maine State Prison. His earliest release date is listed as May 26, 2052, on the state Department of Corrections website.
Betty Adams can be contacted at 621-5631 or at:
badams@centralmaine.com
Twitter: betadams
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