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,STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss CR-08-928 / I,
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JOHN ESTABROOK ORDER ON PETITION
V. FOR POST-CONVICTION REVIEW
STATE OF MAINE
BACKGROUND
Before the Court is a Petition for Post-Conviction Review brought by John Estabrook. The Petitioner is represented by Attorney Scott Lynch, and the State of Maine is represented by Assistant District Attorney Brad Grant.
The Petitioner was found guilty of one count of Class C unlawful sexual contact by a Kennebec County jury on April 17, 2008 after a two-day trial. On April 23, 2008 he was sentenced to four years to the Department of Corrections, with all but two years suspended, and was placed on probation for four years with a number of conditions of probation. In addition, Mr. Estabrook is required to register as a sex offender under Maine's Sex Offender Registration and Notification Act. The jury acquitted the Petitioner of three other counts of Unlawful Sexual Contact.
The Petitioner filed an application to appeal the sentence imposed, which was denied on September 17, 2008. He did not file an appeal of his conviction.
The Petitioner was represented by Attorney Stephen Bourget at trial. Mr. Estabrook now alleges that he received ineffective assistance of counsel throughout the trail process. By a pro-se petition dated December 8, 2008, he made a number of specific allegations, most of which were not properly raised on post-conviction. These included allegations that the sentence imposed by the Court was illegal, that the Court erred in not allowing testimony from two defense experts, and that the jury could not rationally find him guilty beyond a reasonable doubt on Count IV of the indictment if they acquitted him of Counts I through III of the same indictment.
On December 15, 2008, Justice William Anderson issued a Post-Conviction Assignment Order which provided for, among other things, the filing of an amended petition after counsel was assigned. An amended petition was filed on January 14, 2010 which made further, more specific allegations of ineffective assistance of counsel. These included claims that defense counsel should have subpoenaed Dr. James White, Ph.D, for trial. Dr. White was the victim's therapist. The State had, just before trial, successfully tiled a Motion in Limine prohibiting Dr. White from testifying. Mr. Estabrook claims in this matter that had Dr. White been called he would have testified that no disclosure of sexual abuse had been made, or that the victim's statements to him would have been at variance with her trial testimony. He also alleges ineffective assistance of counsel because the defense counsel did not appeal his conviction. Further, he alleges that the defense should have timely disclosed a psychosexual evaluation of the defendant conducted by Dr. Kathryn Thomas, Ph.D, such that she would have been able to testify at trial. Finally, he alleges that the defense failed to challenge the open-ended indictment through a bill of particulars, which Mr. Estabrook alleges would have enabled him to provide an effective "time-based" defense.
FINDINGS AND CONCLUSIONS
The parties agree on the legal standard that the Court must apply in deciding this
matter. In order to prevail on this claim of ineffective assistance of counsel, Mr.
Estabrook must demonstrate that there was serious incompetence, inefficiency or
inattention of defense counsel that falls below that which might be expected from an
ordinary fallible attorney and that this ineffectiveness likely deprived him of an otherwise
available substantial ground of defense. State v. Brewer, 1997 ME 177. Importantly, the
Petitioner must prevail on both prongs of this standard in order to obtain relief post

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Maine Law