The Maine Supreme Judicial Court has denied a petition to review the conviction of a New Hampshire stockbroker who scammed a St. Agatha couple out of $195,000.
James A. Philbrook, 67, a licensed stockbroker for more than thirty years prior to December 2006, was convicted in September 2012 of felony theft by misapplication of property and securities fraud.
Philbrook, who had been the couple’s financial advisor for more than a decade, solicited $195,000 from his clients to invest in a pay-per-view venture involving Carmen Electra, claiming that their investment in the production would earn them a substantial return.
According to court documents, he instead used the cash to repay money that his son had embezzled from an employer, and for his own purposes. Philbrook argued at trial that the money the couple gave him was a personal loan that he intended to repay with proceeds from his personal investment in the pay-per-view venture, an assertion that the jury rejected.
The couple, who are not being identified because they are considered victims, said Philbrook told them “whatever we invested in this deal, that we would double our moneys [and] we would have a substantial return.” He never returned any money to the couple.
The male victim said at Philbrook’s sentencing that because of Philbrook’s actions, he would have to work well past retirement age to support himself and his wife, who cannot work due to health problems.
In 2012, The New Hampshire Bureau of Securities Regulation took administrative action against Philbrook demanding that he return $237,000 he wrongfully obtained from investors in New Hampshire and the St. Agatha couple. In addition, he was fined $12,500, required to reimburse the board $10,000 for its expenses and ordered to cease and desist from any further violations of the securities laws.
Philbrook was sentenced to eight years’ imprisonment for theft by misapplication of property, with all but three years suspended, and three years of probation with a special condition that he make restitution to the couple. He also was sentenced to three years imprisonment on the securities charge, to run concurrently with the theft sentence.
In his appeal, an attorney for Philbrook contended that evidence at his post-conviction hearing compelled the court to find that defense counsel’s representation during plea negotiations, and counsel’s illness and inattention at trial, deprived Philbrook of the effective assistance of counsel, resulting in prejudice.
The Law Court had previously struck down an appeal from Philbrook, who alleged that jury instruction provided by the trial court had omitted a necessary element of the crime of theft
Philbrook filed his first petition for post-conviction review in 2013, alleging the ineffective assistance of trial counsel. The Law Court also struck that appeal down in 2015, writing that Philbrook “failed to prove … that his trial counsel did not communicate to him the state’s offer of a plea agreement and that there was a reasonable probability that he would have accepted it.”
Philbrook filed a notice of appeal on that decision. In the latest case, the justices wrote in their decision issued July 20 that they applied the required two part test to see if Philbrook proved that “counsel’s representation fell below an objective standard of reasonableness,” and that “the deficient representation resulted in prejudice.”
The Maine Supreme Judicial Court found with evidentiary support that Philbrook’s attorney’s did tell him about the state’s plea deal, which involved a cap of two years in prison, but that Philbrook would not agree to an offer that would require prison time and would accept only a short sentence to a county jail.
“Philbrook never stated or testified that he would have agreed to accept the offer,” the justices wrote, “and counsel and Philbrook shared a level of optimism that informed their strategy in rejecting the offer.”
They also acknowledged in their decision that although Philbrook’s attorney was ill during the trial, the court was not persuaded that the illness resulted in ineffectiveness, including prejudice to Philbrook’s case.
Presque Isle Attorney Sarah LeClaire presented oral arguments to the Law Court on behalf of Philbrook. Assistant Attorney General Denis Culley represented the state. Efforts to reach LeClaire and Culley on Friday were unsuccessful.
