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State v. Thomas Nichols
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 178
Docket:	Kno-96-597
Submitted
on Briefs:	June 26, 1997
Decided:	August 5, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.


STATE OF MAINE v. THOMAS L. NICHOLS
ROBERTS, J.

	[¶1]  Thomas L. Nichols appeals from the judgments of conviction
entered in the Superior Court (Knox County, Kravchuk, J.) on jury verdicts
finding him guilty of the possession of a schedule W drug (Class B), 17-A
M.R.S.A. § 1107 (Supp. 1996); aggravated trafficking in a schedule W drug
(Class A), 17-A M.R.S.A. §§ 1103 & 1105 (1983 & Supp. 1996); and
conspiracy to traffick in a schedule W drug (Class C), 17-A M.R.S.A. §§ 151,
1103 (1983 & Supp. 1996).  Nichols argues that he was deprived of his
constitutional right to effective assistance of counsel and that we should
consider his contention on direct appeal.  We decline to do so.  
	[¶2]  In June 1994 Nichols was a passenger in a vehicle driven by
James Pike that was stopped for a traffic violation.  Nichols and Pike were
arrested after a search of the vehicle revealed a package containing 580
grams of cocaine.  After a trial in August 1996 Nichols was convicted of the
possession of cocaine, aggravated trafficking in cocaine, and conspiracy to
traffick in cocaine.  Nichols presents several arguments as to why his
representation at trial was constitutionally defective.  He contends that his
counsel failed to object to various inadmissible and highly damaging
evidence submitted by the State and failed to withdraw from representation
as soon as he discovered that one of the prosecution's key witnesses was his
former client.
	[¶3]  In State v. Pullen, 266 A.2d 222, 230-31 (Me. 1970), we held that
a defendant could not raise on direct appeal a claim of ineffective assistance
of counsel.  We were concerned about the need to develop an adequate
evidentiary record by which to judge trial counsel's performance, and we
concluded it would best be done by a post-conviction review proceeding. 
"The determination would then be made upon a proper evidentiary hearing,
with full findings and record, at which both the appellant and his trial
counsel would be afforded opportunity to be heard."  Id. at 231.  Our
decision in Pullen, however, reserved the possibility that a claim of the
ineffective assistance of counsel could be raised on direct appeal if "it clearly
appeared that ineptness of counsel had resulted in a denial to the appellant
of his constitutional right of adequate counsel."  Id.  We subsequently refined
this statement to provide that ineffective assistance claims could only be
brought on direct appeal if "the appeal record, within its own confines,
establishes beyond possibility of rational disagreement the existence of
representational deficiencies ... which are plainly beyond rational
explanation or justification."  State v. LeBlanc, 290 A.2d 193, 202 (Me.
1972).  To date, we have adhered to the same basic formulation of this
principle.  See, e.g., State v. Jordan, 659 A.2d 849, 831 (Me. 1995) (we will
not consider an ineffective assistance claim on direct appeal "unless the
record reveals, beyond the possibility for rational disagreement, that the
defendant received inadequate representation").  
	[¶4]  Today we make clear that we will not consider a claim of the
ineffective assistance of counsel on direct appeal; henceforth, we will
consider such a contention only after we issue a certificate of probable cause
following a hearing on a post-conviction petition.  There are a number of
pragmatic considerations that underlie our decision.  Considering a claim of
ineffective assistance of counsel on direct appeal (1) deprives the State, in
responding to the defendant's arguments, of the benefit of an evidentiary
hearing, including trial counsel's testimony; (2) places us in the role of
factfinder with respect to evaluating counsel's performance; (3) encourages
a defendant to seek a different counsel for the purpose of raising on a direct
appeal the claim of the ineffective assistance of counsel; and (4) constitutes
a significant drain on our resources in responding to such claims.  
	[¶5]  Regardless of the merit of the defendant's contentions, the
resolution of his claim, and all claims of ineffective assistance of counsel,
must in the first instance be determined in a post-conviction proceeding. 
Therefore, we decline to consider the issues raised by Nichols on this direct
appeal.  
	The entry is:
				Judgments affirmed. 

Attorney for State: Geoffrey Rushlau. District Attorney 62 Union Street Rockland, ME 04841 Attorneys for defendant: Anne H. Jordan, Esq. Jensen Baird Gardner & Henry 419 Alfred Street Biddeford, ME 04005 Craig A. Cellitti, Esq. 240 Commercial Street, Suite 5A Boston, MA 02109