ELLSWORTH — Hancock Superior Court Justice Robert Murray has partially granted and partially denied a Tremont man’s petition for post-conviction review.
Murray issued his written decision in Ben Hodgdon’s case on March 20.
Hodgdon, 52, is currently incarcerated at the Maine Correctional Center in Windham serving a 3½-year sentence for one count each of gross sexual assault, unlawful sexual contact and sexual abuse of a minor.
Hodgdon, a former Tremont Consolidated School teacher, was arrested in January 2014 on a gross sexual assault charge. He was accused of sexually assaulting a student during the 1999-2000 school year. A Hancock County jury found Hodgdon guilty after a three-day trial in March 2016.
An evidentiary hearing for the post-conviction review was held in November, but defense attorney David Weyrens of the Portland firm Hallett Whipple Weyrens and District Attorney Matt Foster made their final written arguments in January.
Murray’s March 20 decision vacated the unlawful sexual contact and sexual abuse of a minor convictions. Hodgdon’s former attorney, the late David Van Dyke, should have requested “specific unanimity jury instruction” for those two charges and did not, the judge said.
Specific unanimity jury instruction means the jury should have been instructed to decide whether the crimes had been committed on specific dates.
“Van Dyke’s failure to do so fell below an objective standard of reasonableness,” Murray wrote.
The judge upheld Hodgdon’s conviction for gross sexual assault.
One of Hodgdon’s arguments was that his due process rights were violated due to the prosecution not retaining the victim’s cell phone.
The investigator, Hancock County Sheriff’s Detective Stephen McFarland, made a copy of a video file, portraying a conversation between the victim and Hodgdon, and returned the phone to the victim. The phone broke, was returned to the company and the permanent files lost.
Weyrens stated in his closing arguments that Hodgdon’s due process rights were violated when the state did not preserve the phone.
However, the phone was an issue brought up in a motion to dismiss during the March 2016 trial as well as in an appeal to the law court, according to Murray. Thus, it cannot be raised in a post-conviction review process.
“The petitioner argues that the failure to maintain possession of the actual cell phone and the state’s delayed response to discovery requests regarding the same demonstrate bad faith on the state’s part sufficient to require vacating the three convictions and dismissal of the remaining counts in the indictment,” said Murray.
However, this issue was raised in a motion to dismiss that Hodgdon filed with the trial judge, Justice Bruce. C. Mallonee.
Murray said Mallonee had denied the motion to dismiss finding that the detective followed “established protocol.”
Hodgdon had later challenged Mallonee’s ruling in an appeal to the law court, which also was not persuaded, Murray stated.
“The post-conviction review statute is clear that errors at trial that have been raised or could have been raised on a direct appeal, whether or not such an appeal was taken, may not be raised in an action for post-conviction review,” Murray stated in his decision.
Hodgdon is now appealing Murray’s decision.
Foster explained that the appeal is “discretionary, meaning that he [Hodgdon] has to show probable cause to the law court in order for them to approve proceeding with the appeal.”
“At this time, that matter is still pending his submission of his probable cause arguments,” Foster said.
Hodgdon is tentatively scheduled for release in June, according to the Maine Department of Corrections.