AUGUSTA — On April 15, the Maine Supreme Court, citing ineffective counsel, vacated a gross sexual assault conviction against a former Tremont Consolidated School teacher accused of sexually assaulting a student.
That was the last remaining conviction for Ben Hodgdon, 53, of Tremont, who spent three years in prison after being found guilty of three charges. Hodgdon was released last summer.
Two other convictions, one for unlawful sexual contact and the other for sexual abuse of a minor, were vacated by the court in March of 2020, after Hodgdon’s petition that he had ineffective counsel.
“I feel pretty good about it,” Hodgdon said Friday. “I know there’s the potential for charges to be brought again, but it really does feel good.”
Hodgdon was represented by Camden attorney Jeremy Pratt of Pratt + Simmons in his appeal to the law court.
“Obviously we’re very pleased,” Pratt said Friday. “It’s as if he was never convicted.”
What happens next is a question for District Attorney Matt Foster, Pratt said. “There will either be a new trial or the case will be dismissed.”
Foster said last week that he would need to confer with the alleged victim about how to proceed.
“If he had been ‘cleared of all charges,’ the court would have remanded for entry of a judgment of acquittal,” Foster said. “Basically, all Mr. Hodgdon has accomplished at this time is to establish that his trial defense attorney did not perform satisfactorily and that he is entitled to a new trial.”
Hodgdon was represented by the late attorney David Van Dyke during a three-day trial in March of 2016. Hodgdon was accused of sexually assaulting a student during the 1999-2000 school year, according to court records.
Hodgdon was found guilty by a jury and ordered to serve three years in prison. He was released last summer.
Meanwhile, in the fall of 2019 and January of 2020, attorney David A. Weyrens of the Portland firm Hallett Whipple Weyrens handled a type of appeal for Hodgdon called a post-conviction review. Justice Robert Murray ruled against Hodgdon.
That’s when Pratt took over and appealed Murray’s decision to the law court.
The Supreme Court agreed with Pratt that Van Dyke erred in entering into evidence the entirety of a transcript and recording between the alleged victim and Detective Stephen McFarland.
“The record compels a determination that, in the context of this case, trial counsel’s decision reflected representation that fell below what might be expected from an ordinary fallible attorney,” the high court stated. “Because we agree that Hodgdon was deprived of his right to the effective assistance of trial counsel, we vacate the judgment and remand for entry of a judgment granting his petition in full.”
“It wasn’t a fair process and that’s really what we’re guaranteed in the Constitution,” said Hodgdon. “I feel relieved but mostly bewildered at the whole scope of it.”
One of the central issues for Hodgdon is a cell phone belonging to the alleged victim, which the District Attorney’s Office returned to the victim. Attorney Weyrens stated in his closing arguments for the post-conviction review process that Hodgdon’s due process rights were violated when the state did not preserve the phone.
McFarland testified in November 2019 that he copied a video, portraying a conversation between the victim and Hodgdon, from the cell phone to his computer. The phone was returned to the victim the following day. When Hodgdon’s original defense attorney, Van Dyke, sought the phone from former Assistant District Attorney Mary Kellett, the state learned the alleged victim no longer had it.
Weyrens said McFarland testified that “best law enforcement practice” would have been “to retain the original recording device or a ghost copy of that.”
“If the state does choose to plow ahead with a second prosecution, Mr. Hodgdon will be seeking dismissal of the charges based on the early investigation and charging decisions,” Weyrens said in an April 16 email. “At that critical phase before any probable cause to support the allegations against Mr. Hodgdon had been established, the investigators ignored substantial evidence of his innocence and mishandled a key piece of evidence which would have contained exculpatory evidence and which the state allowed to be destroyed.”
In practical matters, Hodgdon will be removed from the state of Maine Sex Offender Registry and will no longer be on probation, according to Pratt.